UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6049
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID HILL,
Defendant - Appellant.
No. 09-6413
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID HILL,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:01-cr-00191-CMH-1)
Submitted: February 25, 2011 Decided: March 21, 2011
Before NIEMEYER, SHEDD, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Hill, Appellant Pro Se. Dana James Boente, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In this consolidated proceeding, David Hill seeks to
appeal two orders entered by the district court: (1) an order
construing his first Fed. R. Civ. P. 60(b) motion as a Fed. R.
Crim. P. 33 motion for new trial and dismissing it as time-
barred (No. 09-6049); and (2) an order construing his second
Rule 60(b) motion as a motion for reconsideration and denying it
(No. 09-6413). ∗ We dismiss the appeals.
“[D]istrict courts must treat Rule 60(b) motions as
successive collateral review applications when failing to do so
would allow the applicant to evade the bar against relitigation
of claims presented in a prior application or the bar against
litigation of claims not presented in a prior application.”
United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003)
(emphasis in original) (internal quotation marks omitted).
Accordingly, “a motion directly attacking the prisoner’s
conviction or sentence will usually amount to a successive
application, while a motion seeking a remedy for some defect in
the collateral review process will generally be deemed a proper
motion to reconsider.” Id. at 207.
∗
We initially ordered a limited remand in No. 09-6413 for a
determination of whether the notice of appeal was timely filed.
Upon further consideration, we conclude that the appeals are
civil in nature, and No. 09-6413 is therefore timely.
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To the extent that Hill’s Rule 60(b) motions in both
appeals attack his convictions or restate issues previously
raised in his 28 U.S.C.A. § 2255 (West Supp. 2010) motion, we
conclude that the motions do not comport with the purpose of
Rule 60(b) and that the district court should have dismissed
them as unauthorized § 2255 motions. See Winestock, 340 F.3d at
207 (“[N]ew legal arguments or proffers of additional evidence
will usually signify that the prisoner is not seeking relief
available under Rule 60(b) but is instead continuing his
collateral attack on his conviction or sentence.”).
Accordingly, we deny Hill’s motion for a certificate of
appealability and dismiss this portion of the appeals.
Hill’s contention, in No. 09-6049, that the Government
proceeded in a fraudulent manner during the § 2255 proceeding,
however, is the proper subject of a Rule 60(b) motion. See id.
(“[A]n example of a proper Rule 60(b) claim is an allegation
that government agents perpetrated a fraud on the court during
the collateral review proceedings.”). An appeal may not be
taken to this court from the final order in a proceeding under
§ 2255, including the denial of a Rule 60(b) motion seeking
relief from the underlying denial of a post-conviction motion,
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone,
369 F.3d 363, 368-70 (4th Cir. 2004). When the district court
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denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is
debatable and that the motion states a debatable claim of the
denial of a constitutional right. Slack v. McDaniel, 529 U.S.
473, 484-85 (2000).
While the district court may have procedurally erred
in denying Hill’s fraud upon the court claim, we conclude that
application of an alternative procedural ground renders Hill’s
appeal futile. See Reid, 369 F.3d at 372 n.5 (suggesting that
procedural ground not employed by district court may render
appeal futile). Here, Hill did not file a timely Rule 60(b)(3)
motion because he filed it three years after the district court
denied § 2255 relief, well beyond the authorized one-year
period. Great Coastal Express, Inc. v. Int’l Bhd. of Teamsters,
675 F.2d 1349, 1355 (4th Cir. 1982) (“A motion under [Rule]
60(b)(3), however, must be made within one year after the
judgment was entered.”). We therefore deny a certificate of
appealability and dismiss the fraud upon the court claim.
Additionally, under Winestock, we have considered
Hill’s notices of appeal and informal brief as an application to
file a second or successive § 2255 motion. In order to obtain
authorization to file a successive § 2255 motion, a prisoner
must assert claims based on either:
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(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or (2) a new
rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable.
28 U.S.C.A. § 2255(h). Because Hill’s claims do not satisfy
either of these criteria, we conclude that authorization to file
a successive § 2255 motion should not be granted.
Accordingly, while we grant Hill’s motions to amend
his informal brief, we dismiss the majority of Hill’s claims set
forth in his two Rule 60(b) motions as unauthorized successive
§ 2255 motions and deny a certificate of appealability as to
Hill’s fraud upon the court claim and dismiss that claim, as
well. We also deny Hill authorization to file a successive
§ 2255 motion. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED
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