United States v. Clifford Winkles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-56376
Plaintiff-Appellee,
D.C. Nos.
v. 2:04-cv-03527-DDP
2:00-cr-00359-DDP-2
CLIFFORD MARCUS WINKLES,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding

Argued and Submitted
June 1, 2015—Pasadena, California

Filed July 31, 2015

Before: Milan D. Smith, Jr. and N. Randy Smith, Circuit
Judges and Royce C. Lamberth,* Senior District Judge.

Opinion by Judge Lamberth

*
The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
2 UNITED STATES V. WINKLES

SUMMARY**

Habeas Corpus

The panel dismissed for lack of jurisdiction Clifford
Marcus Winkles’s Rule 60(b) motion for relief from
judgment following the denial of his section 2255 motion to
vacate, set aside, or correct his sentence.

The panel held that a certificate of appealability is
required to appeal the denial of a legitimate Rule 60(b)
motion for relief from judgment arising out of the denial of a
section 2255 motion.

The panel held that a COA should only issue for the
appeal arising from the denial of a Rule 60(b) motion in a
section 2255 proceeding if the movant shows that (1) jurists
of reason would find it debatable whether the district court
abused its discretion in denying the Rule 60(b) motion and
(2) jurists of reason would find it debatable whether the
underlying section 2255 motion states a valid claim of the
denial of a constitutional right.

The panel held that Winkles is not entitled to a COA
because he has not made a substantial showing that the
district court abused its discretion in denying his Rule 60(b)
motion as to the two aspects of the Rule 60(b) motion he
presses on appeal: (1) whether the district court should have
reopened the time to appeal its denial of his original section

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. WINKLES 3

2255 motion and (2) whether the district court should have
considered his purported amended section 2255 motion.

COUNSEL

Ethan A. Balogh (argued) and Jay A. Nelson, Coleman,
Balogh & Scott LLP, San Francisco, California, for
Defendant-Appellant.

Nancy B. Spiegel (argued), Assistant United States Attorney;
Stephanie Yonekura, Acting United States Attorney; Robert
E. Dugdale, Assistant United States Attorney, Chief, Criminal
Division, United States Attorney’s Office, Los Angeles,
California, for Plaintiff-Appellee.
4 UNITED STATES V. WINKLES

OPINION

LAMBERTH, Senior District Judge:

Appellant Clifford Marcus Winkles appeals the denial of
his Rule 60(b) motion for relief from judgment following the
denial of his section 2255 motion to vacate, set aside, or
correct his sentence. Winkles was incarcerated for a term of
476 months following his conviction in federal district court.
His conviction and sentence were affirmed on direct appeal.

Winkles previously filed a Rule 60(b) motion that the
district court denied. We denied a certificate of appealability
(“COA”). He later filed the Rule 60(b) motion at issue in this
appeal. The district court denied this motion as well. A
motions panel of this court referred the matter to this panel to
determine whether a COA is required to appeal the denial of
a legitimate Rule 60(b) motion, whether Winkles’s appeal
presents such a motion, and whether the district court abused
its discretion in denying the Rule 60(b) motion.

We have jurisdiction to consider the first question under
28 U.S.C. §§ 1291, 2253(a). For the reasons that follow, we
hold that a COA is required. We next conclude that Winkles
is not entitled to a COA. Because a COA is required and
Winkles is not entitled to one, we lack jurisdiction to consider
his appeal of the district court’s denial of his Rule 60(b)
motion. The appeal is dismissed.

BACKGROUND

Appellant Clifford Marcus Winkles was indicted on
August 11, 2000, along with co-defendant Eric Ruiz.
Winkles’s Excerpts of Record (“ER”) 479–87. After trial, a
 UNITED STATES V. WINKLES 5

jury convicted Winkles on all counts. ER 442. The district
court then sentenced him to a prison term of 476 months. ER
443. Winkles appealed. We affirmed his conviction and
sentence in an unpublished memorandum disposition on
February 14, 2003. United States v. Winkles, 56 F. App’x
796 (9th Cir. 2003). The court held that there was sufficient
evidence to sustain the conviction on all counts. Id.

I. Original Section 2255 Motion

Winkles timely filed, by submitting to prison authorities
for mailing, his original section 2255 motion on May 7,
2004.1 ER 16, 431–41. Winkles’s original motion raised six
grounds for relief, based on ineffective assistance of counsel
and denial of Fifth Amendment due process. ER 434–38.

The district court denied Winkles’s motion on November
18, 2005 in an opinion that thoroughly discussed and rejected
each of Winkles’s arguments. ER 15–30.

Winkles did not receive this order in a timely fashion. He
wrote to the district court on February 4, 2007 inquiring about
the status of his section 2255 motion. ER 410. On June 20,
2007, the district court received a letter from Winkles stating
again that he had not received the court’s decision and asking
for a “chance to respond” to it. ER 409. The government

1
The time for filing a section 2255 motion is one year from the date on
which the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1).
This period includes the 90 days in which a defendant may petition for
certiorari to the Supreme Court. Clay v. United States, 537 U.S. 522, 532
(2003). Under this rule, the motion was timely from the date of the
expiration of Winkles’s right to seek review at the Supreme Court, May
15, 2003.
6 UNITED STATES V. WINKLES

concedes for purposes of appeal that Winkles did not receive
the order denying his motion prior to this date.

In September 2007, Winkles filed a request to receive a
copy of the order denying his section 2255 motion, which the
district court granted by minute order. ER 401–03, 13.
Winkles later declared that he did not receive the court’s
opinion until October 1, 2007. ER 12. Winkles also declared
that he had previously sent a motion to amend his section
2255 motion that was evidently not received by the court. Id.

II. December 23, 2007 Motion for Reconsideration

The district court construed the June 2007 letter from
Winkles as a request regarding the filing of a motion for
reconsideration. ER 14. It informed him that he was
permitted to file such a motion. Id.

On December 23, 2007, Winkles filed a document styled
as an “[e]x parte application for appointment of counsel;
and/or authorization to file a petition under 28 U.S.C.
§ 2255.” Government’s Excerpts of Record (“GER”) 1. In
part, Winkles asserted that he had been without his trial
transcripts until April 2005, despite repeated requests to
prison authorities to deliver materials which were in prison
storage. GER 4–5. He did not realize the transcripts had
been delivered in April until July or August 2005. Id. He
stated that, after receiving the transcripts, he enlisted the help
of a fellow inmate and submitted a motion for leave to amend
in August or September 2005. GER 5, 29. Winkles did not
attach the amended motion or discuss its contents.

The district court construed Winkles’s filing as a motion
for reconsideration and denied it on March 18, 2008. ER 6.
 UNITED STATES V. WINKLES 7

The court held that Winkles had not cited “what new
evidence, if any, he has discovered from the transcripts that
support the merits of his claims,” ER 9, and therefore, that no
reason for reconsideration had been presented. Id.

III. April 18, 2008 Rule 60(b) Motion and the First
Version of the Amended Motion

Winkles filed a motion for relief from judgment pursuant
to Rule 60(b)(1) and (6) on April 18, 2008. He set forth
much the same argument he had advanced in his 2007 motion
for reconsideration, namely that he was denied a full
opportunity to set forth his section 2255 motion because of
his difficult confinement conditions and because he was
denied access to his trial transcripts for many months. ER
204. He also stated that he submitted an amended section
2255 motion on August 13, 2005 to “staff working the inmate
mailroom, as required by prison procedures” and that the
“envelope was sealed, and stamped by the staff, as all legal
mail is which leaves the prison.” ER 206.

Later, in his “Memorandum in Support,” Winkles stated
that the “same proposed version” as the August 2005
amended section 2255 motion was attached to his Rule 60(b)
motion. ER 211. Winkles seems to be referring to a
document called “Petitioner’s Proposed Issues Related to
§ 2255 Petition.” ER 221–57. This reconstructed version of
the purported amended section 2255 motion sets forth a
number of new bases for relief, based primarily on errors
allegedly committed by the district court and prosecution.
Winkles also alleges additional grounds of ineffective
assistance of counsel. The document appears to be a
reconstruction of whatever Winkles purportedly filed; it has
8 UNITED STATES V. WINKLES

no date, no reference to the district court or his case number,
and no certificate of service.

On March 3, 2009, the district court denied Winkles’s
motion, again construing it as a motion for reconsideration.
ER 3. The court once again held that Winkles had not cited
new evidence discovered in the transcripts that would support
the merits of his claims. ER 5.

Winkles appealed to this court, and we remanded to the
district court for the purpose of deciding whether to issue a
COA. No. 09-55987, Dkt. 2. The district court denied the
request for a COA, and we subsequently declined to issue one
as well. Id., Dkts. 3, 12.

IV. Winkles’s Second Rule 60(b) Motion and the
Second Version of the Amended Motion

On January 29, 2013, Winkles filed by mail a motion for
relief from judgment pursuant to Rule 60(b)(6). ER 183–203.
He then submitted a supplement to the motion on February
23, 2013. ER 59–64. Winkles stated once again that he had
filed an amended section 2255 motion, this time claiming that
he had submitted it on October 13, 2005, ER 185, not August
13, 2005, as he had previously contended. ER 206. He stated
that the “constitutional errors he discovered from the
withheld transcripts” were attached to his motion. ER 63.
We construe this attachment as a different reconstructed
version of his amended section 2255 motion. See ER 186, 63.

The second version of Winkles’s amended section 2255
motion, which he attached to his most recent Rule 60(b)
motion, alleges a few additional grounds for relief, in addition
to recapitulating many of the grounds stated in the first
 UNITED STATES V. WINKLES 9

version of his amended motion. See ER 77–126. Once again,
it appears to be, at best, a reconstruction of what Winkles
purportedly filed in 2005. There is no date, no reference to
the district court or his case, and no certificate of service.

The district court summarily denied Winkles’s Rule 60(b)
motion by minute order on June 28, 2013. ER 2.

V. This Appeal

Winkles appealed the district court’s denial of his 2013
Rule 60(b) motion. We remanded for the district court to
determine whether a COA should issue. Dkt. 4. The district
court denied a COA. ER 1.

In a separate matter, Winkles filed a petition for a writ of
mandamus arguing that a COA was not required to appeal the
denial of his Rule 60(b) motion. No. 13-72920, Dkt. 1. A
panel of this court denied Winkles’s petition for mandamus
but directed the Clerk to file a copy of the petition in this case
“as a motion for this court to review appeal No. 13-56376
without the requirement of a certificate of appealability.” No.
13-72920, Dkt. 4.

Upon evaluation of that motion, a two-judge panel
referred the matter to this panel with directions to determine
whether Winkles’s motion was a legitimate Rule 60(b)
motion, whether a COA is required for Winkles’s appeal, and,
if so, whether one is merited in this case.2

2
The government argues that our refusal to grant a COA for the appeal
of Winkles’s 2008 Rule 60(b) motion means that the COA requirement is
law of the case. The government also contends that it is law of the case,
for the same reason, that the district court did not abuse its discretion in
10 UNITED STATES V. WINKLES

ANALYSIS

The parties agree that this case involves a motion filed
pursuant to Rule 60(b), not Rule 59(e). Winkles only presses
two aspects of his Rule 60(b) motion on appeal: (1) that the
district court should have reopened the time to appeal the
denial of the original section 2255 motion and (2) that the
district court should have considered the purported amended
section 2255 motion. The government concedes that, insofar
as these are the only aspects of the motion raised on appeal,
Winkles’s motion is a “legitimate” Rule 60(b) motion.
Therefore, we assume, without deciding, that Winkles’s Rule
60(b) motion was “legitimate.”

I. A Certificate of Appealability is Required to Appeal
the Denial of a Legitimate Rule 60(b) Motion for
Relief From Judgment Arising Out of the Denial of a
Section 2255 Motion

Winkles argues that he need not obtain a COA before
appealing the denial of his Rule 60(b) motion for relief from
judgment. He presents arguments rooted in the text of section
2253 and in recent decisions of the Supreme Court. For the
reasons elaborated below, Winkles’s arguments fail.

refusing to consider Winkles’s purported amended petition.

In light of the discretionary nature of the law of the case doctrine and
the motions panel’s decision to expressly refer the issue to this panel, we
decline to apply the law of the case doctrine and will consider the merits
of Winkles’s arguments. See United States v. Alexander, 106 F.3d 874,
876 (9th Cir. 1997) (stating that a departure from the law of the case is
appropriate where there has been an intervening change in the law or
“other changed circumstances exist”).
 UNITED STATES V. WINKLES 11

A. Legal Background

28 U.S.C. § 2253(c)(1)(B) provides that “the final order
in a proceeding under section 2255” may not be appealed
unless “a circuit justice or judge issues a certificate of
appealability.” The policy underlying the COA requirement
is to “prevent frivolous appeals from delaying the States’
ability to impose sentences, including death sentences.”
Barefoot v. Estelle, 463 U.S. 880, 892 (1983) (analyzing the
Certificate of Probable Cause requirement under the prior
version of section 2253).

Federal Rule of Civil Procedure 60(b) “allows a party to
seek relief from a final judgment, and request reopening of
his case, under a limited set of circumstances.” Jones v.
Ryan, 733 F.3d 825, 833 (9th Cir. 2013) (quoting Gonzalez v.
Crosby, 545 U.S. 524, 528 (2005)). An order denying a Rule
60(b) motion is indisputably a final, appealable order. In
light of this fact and the policy just described, all circuits but
the Fifth have concluded that a COA is required to appeal an
order denying a Rule 60(b) motion in a habeas corpus
proceeding. West v. Schneiter, 485 F.3d 393, 394 (7th Cir.
2007); United States v. Hardin, 481 F.3d 924, 926 (6th Cir.
2007); Spitznas v. Boone, 464 F.3d 1213, 1218 (10th Cir.
2006); United States v. Lambros, 404 F.3d 1034, 1036 (8th
Cir. 2005); United States v. Vargas, 393 F.3d 172, 174–75
(D.C. Cir. 2004); Reid v. Angelone, 369 F.3d 363, 369 (4th
Cir. 2004); Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d
1253, 1264–67 (11th Cir. 2004) (en banc), aff’d on other
grounds sub nom. Gonzalez v. Crosby, 545 U.S. 524 (2005);
Kellogg v. Strack, 269 F.3d 100, 103 (2d Cir. 2001).
Additionally, the Fifth Circuit has sharply limited the
circumstances where a COA is not required for such an
appeal. See Ochoa Canales v. Quarterman, 507 F.3d 884,
12 UNITED STATES V. WINKLES

888 (5th Cir. 2007) (per curiam) (holding that a COA is not
required “only when the purpose of the [Rule 60(b)] motion
is to reinstate appellate jurisdiction over the original denial of
habeas relief”).3

There are two Ninth Circuit decisions relevant to the
present issue. First, we held in Lynch v. Blodgett, 999 F.2d
401 (9th Cir. 1993), that a Certificate of Probable Cause
(“CPC”), the predecessor analogue to the COA under the
former version of section 2253, was required to appeal the
denial of a Rule 60(b) motion in a section 2254 habeas corpus
proceeding. Id. at 402–03.

As for the current version of section 2253, we held
without discussion in Langford v. Day, 134 F.3d 1381 (9th
Cir. 1998), that a COA is required to appeal the denial of a
Rule 60(b) motion. Id. at 1382. The Langford court held that
it did not have to decide whether the current version of
section 2253 applied because the petitioner could not meet
the more generous standard for issuance of a CPC under the
old statute. Id. Thus, the court implicitly held that the
petitioner would have needed a COA to pursue his appeal.

B. Discussion

We structure our analysis around the bases for Winkles’s
two primary arguments in favor of his position that a COA is
not required: the text of section 2253(c) and the context
provided by the Supreme Court’s recent decision in Harbison
v. Bell, 556 U.S. 180 (2009), interpreting that provision.

3
The Third Circuit has held without analysis that a COA is required in
this context. See Morris v. Horn, 187 F.3d 333, 339 (3d Cir. 1999).
 UNITED STATES V. WINKLES 13

1. Text

Winkles argues that the statutory text of section 2253
supports his contention that the COA requirement does not
apply in this context. The statute requires a COA for the
appeal of “the final order in a proceeding under section
2255.” 28 U.S.C. § 2253(c)(1)(B) (emphasis added). This
implies, Winkles argues, that Congress only intended the
COA to apply to one order per section 2255 proceeding, i.e.
the order denying the section 2255 motion.

In keeping with the reasoning of Lynch and that of many
of our sister circuits, we conclude that contrary to Winkles’s
interpretation, the text of section 2253(c)(1)(B) supports
imposing a COA requirement to appeal the denial of a Rule
60(b) motion for relief from judgment arising out of the
denial of a section 2255 motion.

Congress’s use of the word “the” in section 2253(c)(1)(B)
does not mean that the COA requirement only applies to one
order per section 2255 proceeding. Winkles’s preferred
reading runs contrary to the Dictionary Act, which states that
in “determining the meaning of any Act of Congress, unless
the context indicates otherwise, words importing the singular
include and apply to several persons, parties, or things.”
1 U.S.C. § 1. Because the purpose of section 2253 is in part
to “prevent frivolous cases from clogging appellate dockets,”
the context of the statute indicates that Congress’s use of the
term “the” does not signify that it intended to limit the COA
requirement to only one order per section 2255 proceeding.
See Vargas, 393 F.3d at 174; cf. Lynch, 999 F.2d at 403
(holding that the “obvious purpose” of the predecessor
version of section 2253 was to create “discretionary appellate
review for habeas petitions filed by state prisoners”).
14 UNITED STATES V. WINKLES

Winkles’s preferred reading of section 2253(c) would also
be contrary to the rule of statutory construction that
“Congress is presumed to be aware of an administrative or
judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change” or
when it “adopts a new law incorporating sections of a prior
law.” Lorillard v. Pons, 434 U.S. 575, 580–81 (1978). The
earlier version of section 2253 provided that the prior
analogue to the COA, the CPC, was required to appeal “the
final order in a habeas corpus proceeding.” Reid, 369 F.3d at
368. Courts “consistently required a [CPC] when reviewing
orders denying Rule 60(b) motions in habeas actions.” Id.
When Congress elected not to change the language quoted
above in enacting the COA requirement as part of the
Antiterrorism and Effective Death Penalty Act (AEDPA), we
may presume that it accepted the existing judicial
interpretation of the CPC, which held that a CPC was needed
to appeal more than one order per habeas corpus proceeding,
including the denial of a Rule 60(b) motion for relief from
judgment. Id.

2. Harbison

The Supreme Court has interpreted section 2253(c)(1)(A),
the analogous COA provision regarding appeal of section
2254 habeas petitions, as “govern[ing] final orders that
dispose of the merits of a habeas corpus proceeding—a
proceeding challenging the lawfulness of the petitioner’s
detention.” Harbison, 556 U.S. at 183. Given that section
2255 “was intended to mirror § 2254 in operative effect,” and
that the language used in sections 2253(c)(1)(A) and (c)(1)(B)
is functionally identical, we may apply Harbison’s reasoning
to Winkles’s section 2255 motion. See Jones, 733 F.3d at
830 n.1 (quoting Reed v. Farley, 512 U.S. 339, 353 (1994)).
 UNITED STATES V. WINKLES 15

The Court ruled in Harbison that a COA is not required
to appeal the denial of a motion to enlarge federally appointed
counsel’s authority under 18 U.S.C. § 3599. 556 U.S. at
182–83. The case involved attorneys appointed by a federal
district court to represent a petitioner seeking federal habeas
relief. After the habeas petition was denied, the attorneys
moved the district court to expand their representation to
include state clemency proceedings. Id. The motion was
denied as seeking relief beyond the scope of section 3599. Id.

Winkles asks us to take a substantial step beyond
Harbison and conclude that the COA requirement does not
apply to an appeal of a “legitimate” Rule 60(b) motion for
relief from judgment following the denial of a section 2255
motion. The Supreme Court held in Gonzalez that a
“legitimate” Rule 60(b) motion in the habeas context is one
that “attacks ‘some defect in the integrity of the federal
habeas proceedings.’” United States v. Washington, 653 F.3d
1057, 1060 (9th Cir. 2011) (quoting Gonzalez, 545 U.S. at
532). This is in contrast to a Rule 60(b) motion that advances
a “claim,” i.e. “an asserted federal basis for relief from a state
court’s judgment of conviction.” Gonzalez, 545 U.S. at 530.
The latter type of Rule 60(b) motion is treated as a second or
successive habeas petition, and it must meet the stringent
requirements for the filing of second or successive petitions.
Id. Although Gonzalez was limited to section 2254 actions,
we apply the case’s holding to section 2255 motions as well.
United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir.
2011) (per curiam).

The government concedes that Winkles’s motion is a
“legitimate” Rule 60(b) motion as to the portions raised on
appeal. In light of this concession, we consider Winkles’s
16 UNITED STATES V. WINKLES

three step argument rooted in the Supreme Court’s decisions
in Harbison and Gonzalez:

(1) A legitimate Rule 60(b) motion necessarily does not
relate to the substantive claims made in an underlying
section 2255 motion.

(2) The COA requirement only applies to orders that
dispose of the merits in a section 2255 proceeding.

(3) Therefore, a COA is not required to appeal an order
denying a legitimate Rule 60(b) motion.

In light of Harbison and Gonzalez, we have twice
expressed an interest over the last few years in scrutinizing
the COA requirement with respect to Rule 60(b) motions.
See Washington, 653 F.3d at 1065 n.8 (stating in dicta that the
question of whether a COA is required to appeal the denial of
a “legitimate Rule 60(b)(4) motion” is “open in our circuit”);
Jones, 733 F.3d at 832 n.3 (observing in dicta that if the
petitioner were “appealing the denial or dismissal of a valid
Rule 60(b) motion, he may have had no need for a COA”).
A Third Circuit panel recently made similar musings in dicta.
See Wilson v. Sec’y Penn. Dep’t of Corr., 782 F.3d 110, 115
(3d Cir. 2015).

We conclude that the reasoning of Harbison does not
indicate that an appeal from a Rule 60(b) motion for relief
from judgment in this context is exempt from the COA
requirement. It is anomalous to read the Court as having
overturned the statutory construction of every other circuit
court of appeals without recognition of having done so or
reasoning justifying the act. Such a reading is stranger still in
light of the fact that in the Court’s only direct statement about
 UNITED STATES V. WINKLES 17

the issue, it declined to reject the prevailing interpretation of
the circuits that the COA requirement applies in this situation.
See Gonzalez, 545 U.S. at 535 n.7 (declining to decide if a
COA was required to appeal the denial of a Rule 60(b)
motion but observing that “the COA requirement appears to
be a more plausible and effective screening requirement, with
sounder basis in the statute, than the near-absolute bar
imposed here by the Court of Appeals”).

Furthermore, the matter before the Court in Harbison, an
order on a motion to enlarge the authority of appointed
counsel, was wholly distinct from the habeas petition in that
case. Put simply, the order in Harbison did not pertain to the
district court’s adjudication of the habeas petition. For
example, an order setting the authority of appointed counsel
does not touch on the merits of the habeas petition nor
consider any alleged defects in the integrity of the
proceedings arising out of the district court’s adjudication of
the petition.

Those courts that have extended Harbison to the appeal
of other types of orders in habeas proceedings have done so
when the order had similarly little to do with the adjudication
of the habeas petition. In Lambright v. Ryan, 698 F.3d 808
(9th Cir. 2012) and United States v. Fulton, 780 F.3d 683 (5th
Cir. 2015), we and the Fifth Circuit cited Harbison in
holding, respectively, that a COA is not required to appeal an
order modifying a protective order in a habeas corpus
proceeding or an order transferring a section 2255 motion.
Lambright, 698 F.3d at 817 n.2; Fulton, 780 F.3d at 687–88.
By contrast, a legitimate Rule 60(b) motion for relief from
judgment arising out of the denial of a section 2255 motion
pertains to the district court’s adjudication of the section 2255
motion.
18 UNITED STATES V. WINKLES

C. Conclusion

We conclude—in keeping with the Supreme Court’s
holding in Harbison, the text of section 2253(c), and the
policy underlying the statute—that a COA is required to
appeal the denial of a Rule 60(b) motion for relief from
judgment arising out of the denial of a section 2255 motion.

II. Standard for Issuance of a Certificate of Appealability

Our last statement about the standard to be applied for
issuance of a COA in this context came in Lynch, where we
considered the standard for issuance of a CPC. We held that
a CPC should only issue upon a “substantial showing that the
district court abused its discretion by denying the Rule 60(b)
motion.” Lynch, 999 F.2d at 403 (quoting Lindsey v.
Thigpen, 875 F.2d 1509, 1512 (11th Cir. 1989)). We have
not yet determined the standard that should be applied to the
COA requirement under the current section 2253 and its
requirement that a COA only issue upon “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).

Courts of appeals that have articulated standards for
issuance of a COA in this context have generally drawn from
the Supreme Court’s decision in Slack v. McDaniel, 529 U.S.
473 (2000). United States v. Arrington, 763 F.3d 17, 23
(D.C. Cir. 2014); Spitznas, 464 F.3d at 1225; Reid, 369 F.3d
at 371; Gonzalez, 366 F.3d at 1267. In Slack, the Court
determined the standard governing issuance of a COA when
the district court denies a habeas petition on procedural
grounds. The Court articulated a two part standard:
 UNITED STATES V. WINKLES 19

When the district court denies a habeas
petition on procedural grounds without
reaching the prisoner’s underlying
constitutional claim, a COA should issue
when the prisoner shows, at least, [1] that
jurists of reason would find it debatable
whether the petition states a valid claim of the
denial of a constitutional right and [2] that
jurists of reason would find it debatable
whether the district court was correct in its
procedural ruling.

Slack, 529 U.S. at 484.4 The Court held that this test “gives
meaning to Congress’s requirement that a prisoner
demonstrate substantial underlying constitutional claims and
is in conformity with the meaning of the ‘substantial
showing’ standard provided in Barefoot . . . and adopted by
Congress in AEDPA.” Id. The substantial showing standard
is met when “reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.” Id. at 484 (citation and
internal quotation marks omitted).

Similarly, we hold that a COA should only issue for the
appeal arising from the denial of a Rule 60(b) motion in a
section 2255 proceeding if the movant shows that (1) jurists
of reason would find it debatable whether the district court

4
Because section 2253(c)(2) imposes the same standard for issuance of
a COA in both section 2254 and 2255 proceedings, cases stating the COA
standard in section 2254 habeas proceedings are fully applicable to section
2255 proceedings. See United States v. Martin, 226 F.3d 1042, 1046 n.4
(9th Cir. 2000).
20 UNITED STATES V. WINKLES

abused its discretion in denying the Rule 60(b) motion and
(2) jurists of reason would find it debatable whether the
underlying section 2255 motion states a valid claim of the
denial of a constitutional right. In so holding, we adopt the
test set forth by the Second Circuit in Kellogg. 269 F.3d at
104.

This test is appropriate because it accords with the
Supreme Court’s test in Slack while incorporating the
standard of review applicable to Rule 60(b) motions. The test
for issuance of a COA is basically an initial peek at how the
appeal would proceed, based on the standard of review that a
court of appeals will ultimately apply. For example, the
dismissal of a habeas petition is subject to de novo review.
Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir.
2011). Therefore, the COA standard is based on a de novo
evaluation of the district court’s order. See Slack, 529 U.S.
at 484.

In order to maintain continuity with this approach, the
COA test for appeal of the denial of a Rule 60(b) motion
should coincide with the standard of review the court will
apply during the appeal. Here, that standard of review is
abuse of discretion. See Cook v. Ryan, 688 F.3d 598, 608
(9th Cir. 2012). The standard we adopt today is also in
keeping with our approach to CPCs in the Rule 60(b) context
under pre-AEDPA law. Lynch, 999 F.2d at 403 (holding that
a CPC should issue only if the petitioner “has made a
substantial showing that the district court abused its
discretion by denying the Rule 60(b) motion”) (citation
omitted).
 UNITED STATES V. WINKLES 21

III. Winkles is Not Entitled to a Certificate of
Appealability

Winkles only presses two aspects of his Rule 60(b)
motion on appeal: (1) that the district court should have
reopened the time to appeal its denial of his original section
2255 motion and (2) that it should have considered his
purported amended section 2255 motion. We conclude that
Winkles has not made a substantial showing that the district
court abused its discretion in denying his Rule 60(b) motion
as to these issues. Because both prongs of the COA standard
must be satisfied and he has failed to meet one of them,
Winkles is not entitled to a COA.

A. The District Court Did Not Abuse Its Discretion
By Refusing to Reopen the Time for Appeal

Winkles argues that the district court should have
reopened the time to appeal the denial of his original section
2255 motion.

Federal Rule of Appellate Procedure 4(a)(6) governs a
district court’s authority to reopen the time to file an appeal.
It states that a district court may reopen the time to file an
appeal for 14 days if all of the following conditions are met:

(A) the court finds that the moving party
did not receive notice under Federal
Rule of Civil Procedure 77(d) of the
entry of judgment or order sought to
be appealed within 21 days after entry;

(B) the motion is filed within 180 days
after the judgment or order is entered
22 UNITED STATES V. WINKLES

or within 14 days after the moving
party receives notice under Federal
Rule of Civil Procedure 77(d) of the
entry, whichever is earlier; and

(C) the court finds that no party would be
prejudiced.

Fed. R. App. P. 4(a)(6).

This rule interacts with Federal Rule of Civil Procedure
77(d), which states that the clerk must serve notice of the
entry of an order or judgment on each party who is not in
default for failure to appear. Fed. R. Civ. P. 77(d)(1). The
rule provides that “[l]ack of notice of the entry does not affect
the time for appeal or relieve—or authorize the court to
relieve—a party for failing to appeal within the time allowed,
except as allowed by Federal Rule of Appellate Procedure
(4)(a).” Fed. R. Civ. P. 77(d)(2).

Winkles concedes that he did not meet the 180 day outer
limit stated in part (B) above and, therefore, cannot receive
relief pursuant to Fed. R. App. P. 4(a)(6). He argues, instead,
that the district court should have used its equitable powers
under Rule 60(b)(6) to vacate the prior judgment and reenter
it, thus restarting the clock on his time to appeal. See 16A
Charles Alan Wright et al., Federal Practice and Procedure
§ 3950.6 (4th ed. 2008) (discussing this mechanism as a
“onetime practice” of district courts). He roots his argument
in the injustice arising from the district court’s failure to
notify him of the denial of his section 2255 motion. The
government concedes Winkles was not served with the
court’s order in a timely fashion.
 UNITED STATES V. WINKLES 23

We have repudiated, however, the practice of vacating
and reentering judgments to reopen the time for appeal as a
remedy for lack of notice. We held in In re Stein, 197 F.3d
421 (9th Cir. 1999), that “Rule 4(a) and Rule 77(d) now form
a tessellated scheme; they leave no gaps for Rule 60(b) to
fill.” Id. at 426. The Stein court concluded that Fed. R. App.
P. 4(a)(6) sets an “outer limit” on the time to appeal;
“[a]llowing further extensions or tampering with those time
limits for conferring appellate jurisdiction upon us, based
solely on notice problems, . . . would undermine (or even
eliminate) the very purpose and need for the rule itself.” Id.
at 425. The court approvingly quoted an Eighth Circuit case
stating that these rules “preclude[] the use of Fed. R. Civ. P.
60(b)(6) to cure problems of lack of notice.” Id. (quoting
Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357, 360–61
(8th Cir. 1994)).

We have noted an exception to Fed. R. App. P. 4(a)(6)’s
limit on a district court’s authority to reopen the time for
appeal. See Mackey v. Hoffman, 682 F.3d 1247 (9th Cir.
2012). In Mackey, a habeas petitioner moved the district
court to reopen the time for appeal. Id. at 1250. He argued
that he had not received notice of the denial of his petition
because his attorney ceased representing him but did not
withdraw as attorney of record. Id. at 1253. Therefore,
“Mackey was deprived of the opportunity to proceed pro se
and to personally receive docket notifications from the court.”
Id.

The Mackey court held that a district court had discretion
in that instance to vacate and reenter a judgment pursuant to
Rule 60(b)(6) to reopen the time for appeal because the
petitioner was not seeking to “cure a Rule 77(d) ‘lack of
notice’ problem.” Id. at 1252, 1254. Instead, he was seeking
24 UNITED STATES V. WINKLES

to cure a problem “caused by his being misled and abandoned
by his counsel of record.” Id. at 1252. Thus, he was not
receiving relief pursuant to Fed. R. App. P. 4(a)(6). Id. at
1253.

Winkles argues that we should further expand Mackey to
cover his situation. He distinguishes In re Stein on its facts
because that case involved sophisticated attorney litigants.
ARB 20.

Winkles’s argument is unpersuasive because it ignores the
fact that Fed. R. App. P. 4(a)(6) expressly contemplates a
litigant like himself who did not receive notice of an order as
required by Rule 77(d). See Fed. R. App. P. 4(a)(6). Indeed,
other courts of appeals have construed Fed. R. App. P.
4(a)(6)’s 180 day time limit to be mandatory in very similar
factual situations. See In re Sealed Case (Bowles), 624 F.3d
482, 488–89 (D.C. Cir. 2009) (holding Rule 4(a)(6) to be
binding despite the fact that the case was sealed, making it
impossible for the appellant to independently check the
docket); Clark v. Lavallie, 204 F.3d 1038, 1040–41 (10th Cir.
2000) (holding that an unrepresented federal prisoner was not
entitled to Rule 60(b) relief to reopen the time for appeal for
lack of notice because the “essence of Rule 4(a)(6) is finality
of judgment” and its 180 day limit is “specific and
unequivocal”).

These cases are in keeping with the implications of
Bowles v. Russell, 551 U.S. 205 (2007). There, the Supreme
Court held that the statutory time limit for taking an appeal is
jurisdictional. Id. at 213. Because meeting the deadline to
appeal is jurisdictional, courts do not have authority to create
“equitable exceptions” to it. Id. at 214. Thus, a motion to
reopen the time to appeal because of a lack of notice may not
 UNITED STATES V. WINKLES 25

be granted by way of an “equitable exception” through Rule
60(b).

Jurists of reason would not find it debatable that the
district court abused its discretion by denying this aspect of
his Rule 60(b) motion.

B. The District Court Did Not Abuse Its Discretion
By Refusing to Consider Winkles’s Amended
Section 2255 Motion

Winkles also argues that the district court abused its
discretion by failing to deem his purported amended section
2255 motion filed as of August 2005 and refusing to consider
the claims raised therein. Jurists of reason would not find it
debatable that the district court abused its discretion on this
basis because Winkles failed to file his purported amended
section 2255 motion prior to the district court ruling on his
initial section 2255 motion.

1. Legal standard

Rule 3(d) of the Rules Governing § 2255 Proceedings
governs the filing procedure for Winkles’s amended section
2255 motion. That rule was made effective December 1,
2004, and Winkles’s amended motion was allegedly filed in
August 2005. Rule 3(d) codifies the prison mailbox rule,
which states that a motion or other paper submitted by a
prisoner is deemed filed as of the date he submits it to prison
authorities for mailing if certain conditions are met. See
Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001). We
have held, under the common law prison mailbox rule, that an
inmate bears the initial burden of alleging timely filing.
Caldwell v. Amend, 30 F.3d 1199, 1202–03 (9th Cir. 1994).
26 UNITED STATES V. WINKLES

Rule 3(d) provides:

A paper filed by an inmate confined in an
institution is timely if deposited in the
institution’s internal mailing system on or
before the last day for filing. If an institution
has a system designed for legal mail, the
inmate must use that system to receive the
benefit of this rule. Timely filing may be
shown by a declaration in compliance with 28
U.S.C. § 1746 or by a notarized statement,
either of which must set forth the date of
deposit and state that first-class postage has
been prepaid.

Rules Governing § 2255 Proceedings, R. 3, 28 U.S.C. foll.
§ 2255. 28 U.S.C. § 1746(2) states that a sworn declaration
executed in the United States may be evidenced by a
document subscribed to by the declarant and containing
substantially the following: “I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and
correct. Executed on (date).”

We have not authoritatively construed the requirements
of Rule 3. However, we have interpreted Fed. R. App. P.
4(c)(1), substantially identical to Rule 3(d), to generally
require a “declaration or notarized statement” to prove timely
filing. Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir.
2009). The Douglas court held, however, that such a filing
was unnecessary in that case because the prison’s records
showed the inmate’s complaint as having been mailed on the
purported date of filing. Id.
 UNITED STATES V. WINKLES 27

Thus, Douglas indicates that at a minimum, an inmate
must file a sworn declaration or notarized statement as set
forth in the rule to meet the initial burden of proving timely
filing unless more probative evidence, such as the prison mail
log, is available. Consistent with the text of the rule, a sworn
declaration or notarized statement in support of timely filing
under Rule 3 must (1) include a statement indicating in some
fashion that postage was prepaid and (2) include the date the
filing was submitted to prison officials. Courts have strictly
construed the substantially identical text of Fed. R. App. P.
4(c) as requiring that both of these statements be included in
the declaration or notarized statement to comply with the
rule. Jenkins v. Superintendent of Laurel Highlands,
705 F.3d 80, 84 n.2 (3d Cir. 2013); Price v. Philpot, 420 F.3d
1158, 1166 (10th Cir. 2005); United States v. Craig, 368 F.3d
738, 740 (7th Cir. 2004).

Winkles contends that Rule 3’s use of the word “may”
means these provisions are only suggestions. To adopt this
interpretation, however, would render this portion of the rule
mere surplusage. Such an interpretation would be contrary to
the “cardinal” canon of statutory construction that courts
must interpret statutes so that “no clause, sentence, or word
shall be superfluous, void, or insignificant.” See United
States v. Ceballos-Martinez, 387 F.3d 1140, 1144–45 (10th
Cir. 2004) (quoting Duncan v. Walker, 533 U.S. 167, 174
(2001)).

Indeed, reading these statements as superfluous would
remove from the rule provisions that have evident value as a
matter of policy. For example, requiring an inmate to swear
to the date he gave his filing to prison officials for mailing
functions as a screening mechanism on false claims of timely
mailing. It also creates a more readily confirmed or rebutted
28 UNITED STATES V. WINKLES

evidentiary record. The postage requirement also has value
because, as one court reasoned, “mail bearing a stamp gets
going, but an unstamped document may linger.” Craig,
368 F.3d at 740.

2. Application

As a threshold matter, we observe that there is little
evidence of the amended motion’s contents, or even its
existence. A copy of the amended section 2255 motion
appears never to have reached the district court and it is not
before us either. As counsel conceded at oral argument, the
two purported amended motions in the record are mere
reconstructions of whatever Winkles claims he filed in 2005.
Even if a reconstruction might be permissible in a different
circumstance, the two purported amended motions before us
are of dubious value, setting forth different claims and
appearing on their face to have been separately created.

It is with this woefully inadequate record in mind that we
now consider Winkles’s evidence of timely filing by mail.
Winkles has not submitted evidence of the prison’s mail logs
or other more probative evidence of mailing. Therefore, he
was required to submit a sworn declaration or notarized
statement in support of timely filing.

There are two sworn declarations in the record that
discuss the filing of the amended section 2255 motion and
meet the requirements of section 1746. First, a fellow inmate
named Frank Gabaldon executed a sworn declaration on
December 1, 2007. GER 29. Gabaldon states that the
amended motion was given to the mail room guard “between
August and September 2005” and that Gabaldon allowed
Winkles to “borrow several stamps to place on both
 UNITED STATES V. WINKLES 29

envelopes.” Id. Second, Winkles executed a sworn
declaration on October 3, 2007. ER 12. In it, Winkles states
only that he “placed [his] motion to amend [his] 2255 motion
into the hands of correctional officers as required by prison
mail rules.” Id. The declaration says nothing about the date
this occurred, calling into question his unsworn
representations of mailing on August 13, 2005, ER 206, or
October 13, 2005, ER 185. Thus, Gabaldon’s declaration is
the only one in the record that is remotely responsive to Rule
3(d)’s requirements.

These declarations and the evidentiary record before the
district court show that jurists of reason would not find it
debatable that the district court abused its discretion by
refusing to consider the purported amended section 2255
motion. Here, the district court had before it conflicting
evidence of the contents of the filing allegedly made,
inconsistent representations by Winkles about the date of
mailing, and no sworn declaration from Winkles himself as
to the date of mailing. Although Gabaldon’s declaration
vaguely refers to Winkles having deposited his amended
motion with prison officials in “August or September 2005,”
this declaration is insufficient in the context of the record
before the district court to lead us to view the district court’s
decision not to credit the claimed date of filing as an abuse of
discretion.

We conclude that Winkles has failed to make a substantial
showing that the district court abused its discretion by
refusing to consider his purported amended motion.
Whatever the effectiveness of Gabaldon’s declaration as to
the date of deposit with prison officials in a vacuum, the
circumstances presented to the district court were such that it
30 UNITED STATES V. WINKLES

was no abuse of discretion to conclude that Winkles had
failed to comply with Rule 3(d).

CONCLUSION

For the foregoing reasons, we hold that a COA is required
to appeal the denial of a Rule 60(b) motion for relief from
judgment arising out of the denial of a section 2255 motion.
Winkles is not entitled to a COA. The request for a COA is
denied, and this appeal is dismissed for lack of jurisdiction.

Certificate of Appealability DENIED. Appeal
DISMISSED.