United States v. Winestock

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-6304
PAUL WINESTOCK, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge;
William M. Nickerson, Senior District Judge.
(CR-90-454, CA-00-3238-WMN)
Argued: February 24, 2003
Decided: April 25, 2003
Before WILKINS, Chief Judge, and LUTTIG and
GREGORY, Circuit Judges.
Vacated and remanded and authorization denied by published opin-
ion. Chief Judge Wilkins wrote the opinion, in which Judge Luttig
and Judge Gregory joined.
COUNSEL
ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW APPELLATE LITIGATION CLINIC, Char-
lottesville, Virginia, for Appellant. Barbara Suzanne Skalla, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee. ON
2 UNITED STATES v. WINESTOCK
BRIEF: Thomas M. DiBiagio, United States Attorney, Greenbelt,
Maryland, for Appellee.
OPINION
WILKINS, Chief Judge:
Paul Winestock, Jr. appeals a district court order denying his
motion for reconsideration of the denial of post conviction relief.
Having previously granted a certificate of appealability, see 28
U.S.C.A. § 2253(c) (West Supp. 2002), we now hold that Wine-
stock’s motion amounted to a successive application for post convic-
tion relief and that the district court therefore lacked jurisdiction to
consider it. See 28 U.S.C.A. § 2255 ¶ 8 (West Supp. 2002). Accord-
ingly, we vacate the order denying reconsideration and remand with
instructions to dismiss. In addition, we deny authorization for Wine-
stock to file a second or successive application. See 28 U.S.C.A.
§ 2244(b)(3) (West Supp. 2002).
I.
Winestock was convicted of two cocaine-trafficking offenses. In
1997, this court affirmed Winestock’s convictions. See United States
v. Winestock, 110 F.3d 62 (4th Cir.) (per curiam) (unpublished table
decision), cert. denied, 522 U.S. 855 (1997). Two years later, we
affirmed the sentence imposed by the district court after it granted
Winestock’s motion for resentencing based on a retroactive amend-
ment to the sentencing guidelines. See United States v. Winestock,
187 F.3d 633 (4th Cir.) (per curiam) (unpublished table decision),
cert. denied, 528 U.S. 980 (1999).
In 2000, Winestock sought post conviction relief pursuant to 28
U.S.C.A. § 2255 (West Supp. 2002). Relying on Apprendi v. New Jer-
sey, 530 U.S. 466 (2000), Winestock alleged that the indictment
against him was defective and that his sentence was unlawful. When
the Government maintained that Winestock had waived these claims
by failing to raise them on appeal, Winestock asserted, inter alia, that
any waiver was attributable to ineffective assistance of counsel. The
UNITED STATES v. WINESTOCK 3
district court denied relief on the ground that Apprendi does not apply
retroactively; the court also ruled, in the alternative, that Winestock
had waived his claims and that this waiver could not be excused based
on ineffective assistance of counsel.
Winestock moved for reconsideration, arguing that (1) the court
erred in refusing to apply Apprendi retroactively, (2) his appellate
lawyer provided ineffective assistance by failing to raise Winestock’s
Apprendi claims, and (3) the same lawyer performed deficiently by
failing to disclose that he had been imprisoned and disbarred. The dis-
trict court denied this motion.
Winestock appealed the order denying § 2255 relief and the order
denying reconsideration. As to the first order, we denied a certificate
of appealability and dismissed the appeal. See United States v. Wines-
tock, 43 Fed. Appx. 685, 686 (4th Cir. 2002) (per curiam). Thus, only
the appeal from the order denying reconsideration is now before us.
II.
The ultimate question here is whether Winestock’s motion for recon-
sideration1 should have been treated as a successive collateral review
application.2 This question is important because, as we will discuss
more extensively below, review of successive applications is avail-
able only in limited circumstances. In order for these limitations to be
effective, courts must not allow prisoners to circumvent them by
attaching labels other than "successive application" to their pleadings.
See Calderon v. Thompson, 523 U.S. 538, 553 (1998).
1
Throughout this opinion, we will use the umbrella term "motions for
reconsideration" to refer to post-judgment motions filed in the district
court pursuant to Fed. R. Civ. P. 59(e) or Fed. R. Civ. P. 60(b), as well
as appellate motions for rehearing or to recall the mandate. We note,
however, that different types of motions may be subject to different treat-
ment in this context. See, e.g., Curry v. United States, 307 F.3d 664, 665
(7th Cir. 2002) (distinguishing between Rule 59(e) motions and Rule
60(b) motions), pet. for cert. filed, No. 02-9422 (U.S. Feb. 6, 2003).
2
As used in this opinion, the term "collateral review applications"
refers to motions for post conviction relief under § 2255 and petitions for
habeas corpus under 28 U.S.C.A. § 2254 (West 1994 & Supp. 2002).
4 UNITED STATES v. WINESTOCK
This responsibility comports with the longstanding practice of
courts to classify pro se pleadings from prisoners according to their
contents, without regard to their captions. See United States v.
Emmanuel, 288 F.3d 644, 647 (4th Cir. 2002). This practice has
acquired greater significance since the enactment of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-
132, 110 Stat. 1214 (1996), and the Prison Litigation Reform Act of
1995 (PLRA), Pub. L. No. 104-134, tit. VIII, 110 Stat. 1321, 1321-66
(1996). These statutes place significant restrictions on prisoner litiga-
tion (including the limits on successive applications we will discuss
below) and thus elevate the degree of caution that courts must exer-
cise when determining how to classify prisoner pleadings. See
Emmanuel, 288 F.3d at 647-48. With these concerns in mind, we now
examine the relevant statutes and rules and how they relate to each
other.
A. Motions for Reconsideration under Rule 60(b) of the Federal
Rules of Civil Procedure
Because Winestock’s motion was titled "Motion for Reconsidera-
tion, or in the Alternative, Motion for a Certificate of Appealability,"
we begin our analysis by examining the provisions governing motions
for reconsideration. We focus on Fed. R. Civ. P. 60(b), because
Winestock’s motion was filed more than ten days after the entry of
judgment. See Small v. Hunt, 98 F.3d 789, 797 (4th Cir. 1996).
Rule 60(b) allows a party to obtain relief from a final judgment
based on:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence
could not have been discovered in time to move for a new
trial under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or dis-
charged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable
that the judgment should have prospective application; or
UNITED STATES v. WINESTOCK 5
(6) any other reason justifying relief from the operation of
the judgment.
This rule codifies inherent judicial powers that were previously exer-
cised through a gaggle of common-law writs, which the rule abol-
ishes. See United States v. Beggerly, 524 U.S. 38, 43-45 (1998); Plaut
v. Spendthrift Farm, Inc., 514 U.S. 211, 233-34 (1995).
The powers reflected in Rule 60(b) are subject to limitations
imposed by the rule itself and by precedent. The rule establishes time
limits for motions alleging certain grounds for relief. Judicial deci-
sions, meanwhile, have described the limits of relief available under
particular components of the rule. See, e.g., Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 863-64 (1988) (discussing the
proper use of the Rule 60(b)(6) "catch-all" provision). District court
decisions granting or denying Rule 60(b) relief are reviewed for abuse
of discretion, although "the exercise of discretion cannot be permitted
to stand if we find it rests upon" an error of law. Agostini v. Felton,
521 U.S. 203, 238 (1997).
B. Limitations on Successive Collateral Review Applications
We turn now to an examination of the limitations on successive
collateral review applications. Before the AEDPA was enacted, Con-
gress and the Supreme Court restricted judicial consideration of suc-
cessive applications through statutes, rules, and decisional law. See
McCleskey v. Zant, 499 U.S. 467, 479-88 (1991). These restrictions
applied to claims presented for the first time in a second or successive
application ("abusive claims") as well as claims that had been pre-
sented in previous applications ("repetitive claims").3 See, e.g., Rule
9(b), Rules Governing § 2255 Proceedings. As discussed below, the
AEDPA "codifies some of the pre-existing limits on successive peti-
tions, and further restricts the availability of relief to habeas petition-
ers." Felker v. Turpin, 518 U.S. 651, 664 (1996).
3
The claims that we have termed "repetitive" are often called "succes-
sive." We have chosen a different term in order to avoid confusion
between "successive claims" and "successive applications."
6 UNITED STATES v. WINESTOCK
1. Substantive Limitations Under the AEDPA
As amended by the AEDPA, § 2255 bars successive applications
unless they contain claims relying on
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be suffi-
cient 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 ¶ 8. A separate provision, also enacted as part of
the AEDPA, places similar restrictions on state prisoners seeking to
file successive applications under 28 U.S.C.A. § 2254 (West 1994 &
Supp. 2002). See 28 U.S.C.A. § 2244(b)(2) (West Supp. 2002).
An additional limit created by the AEDPA provides that any claim
"presented in a second or successive habeas corpus application under
section 2254 that was presented in a prior application" must be dis-
missed. Id. § 2244(b)(1). Although this rule is limited by its terms to
§ 2254 applications, some courts have also applied it to § 2255 appli-
cations. See Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir. 2002);
Charles v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999) (per curiam).
We need not decide here whether to follow this approach.
2. Procedural Requirements Established by the AEDPA
In addition to enacting the substantive standards we have just
described, the AEDPA modified the procedures governing successive
collateral review applications. As a result of these modifications, a
prisoner seeking to file a successive application in the district court
must first obtain authorization from the appropriate court of appeals.
See 28 U.S.C.A. § 2244(b)(3). The court of appeals must examine the
application to determine whether it contains any claim that satisfies
§ 2244(b)(2) (for state prisoners) or § 2255 ¶ 8 (for federal prisoners).
UNITED STATES v. WINESTOCK 7
If so, the court should authorize the prisoner to file the entire applica-
tion in the district court, even if some of the claims in the application
do not satisfy the applicable standards. See Nevius v. McDaniel, 104
F.3d 1120, 1121 (9th Cir. 1996). Compare 28 U.S.C.A. § 2244(b)(3)
(establishing gatekeeping function for court of appeals with respect to
"second or successive application[s]" (emphasis added)), with id.§ 2244(b)(4) (requiring district court to dismiss "any claim presented
in a second or successive application" that does not satisfy applicable
standards (emphasis added)). When the application is thereafter sub-
mitted to the district court, that court must examine each claim and
dismiss those that are barred under § 2244(b) or § 2255 ¶ 8. See 28
U.S.C.A. § 2244(b)(4); see also Reyes-Requena v. United States, 243
F.3d 893, 899 (5th Cir. 2001) (holding that § 2244(b)(4) applies in
§ 2255 cases).
In the absence of pre-filing authorization, the district court lacks
jurisdiction to consider an application containing abusive or repetitive
claims. See Evans v. Smith, 220 F.3d 306, 325 (4th Cir. 2000). More-
over, because the authorization requirement applies to the entire
application, the jurisdictional effect of § 2244(b)(3) extends to all
claims in the application, including those that would not be subject to
the limits on successive applications if presented separately.4 Applica-
tions including abusive or repetitive claims along with otherwise
reviewable claims have been described as a "new breed of mixed peti-
tion." Pennington v. Norris, 257 F.3d 857, 858 (8th Cir. 2001) (inter-
nal quotation marks omitted). The Eighth Circuit has held that a
4
Other circuits have identified numerous types of claims that are not
subject to the limits on successive applications. For example, some
courts have held that a § 2254 petition challenging decisions relating to
the execution of the judgment does not amount to a successive applica-
tion if the prisoner filed his previous § 2254 petition before those deci-
sions were made and challenged only the underlying criminal judgment.
See, e.g., James v. Walsh, 308 F.3d 162, 168 (2d Cir. 2002). We need not
decide here whether we would follow the same rule. For present pur-
poses, it is sufficient to note that if we did adopt this rule, a § 2254 peti-
tion presenting only claims relating to the execution of the prisoner’s
sentence would not be subject to the procedural or substantive require-
ments of § 2244(b); however, if the petition also contained claims relat-
ing to the underlying criminal judgment, the district court would lack
jurisdiction to rule on any portion of the petition.
8 UNITED STATES v. WINESTOCK
district court that receives such an application should afford the pris-
oner the choice of "seeking authorization from the court of appeals for
his second or successive claims, or of amending his petition to delete
those claims so he can proceed with the claims that require no autho-
rization." Id. at 859 (internal quotation marks omitted). We agree that
this is the appropriate solution.
C. Interactions among § 2244(b), § 2255, and Rule 60(b)
Having examined Rule 60(b) and the relevant components of the
AEDPA, we now consider how these provisions interact. At the out-
set, we note that our pre-AEDPA precedent endorsed the treatment of
Rule 60(b) motions as successive applications when they presented
abusive or repetitive claims. See Hunt v. Nuth, 57 F.3d 1327, 1339
(4th Cir. 1995) (treating Rule 60(b) motion raising new claims as suc-
cessive § 2254 application); Jones v. Murray, 976 F.2d 169, 172-73
(4th Cir. 1992) (same, for Rule 60(b) motion containing repetitive
claim). The Supreme Court has ratified this approach since the enact-
ment of the AEDPA. See Calderon, 523 U.S. at 553 (stating that "a
prisoner’s motion to recall the mandate on the basis of the merits of
the underlying decision can be regarded as a second or successive
application for purposes of § 2244(b)").
Neither Calderon nor our own case law expressly requires district
courts to construe Rule 60(b) motions as successive applications.
With respect to our own decisions, we believe this reflects the greater
flexibility afforded district courts under pre-AEDPA standards. In
light of the tighter restrictions imposed by the AEDPA, including
most notably the jurisdictional constraint on review of successive
applications filed without authorization, we now hold that district
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 applica-
tion," id. (citation omitted). We note that five of the seven courts of
appeals to consider this question agree with us that a district court has
no discretion to rule on a Rule 60(b) motion that is functionally equiv-
alent to a successive application.5 Compare Boyd v. United States,
5
The position of the Third Circuit is unclear. See United States v.
Edwards, 309 F.3d 110, 113 (3d Cir. 2002) (per curiam) (holding that
UNITED STATES v. WINESTOCK 9
304 F.3d 813, 814 (8th Cir. 2002) (per curiam) (requiring that Rule
60(b) motion be treated as successive application), pet. for cert. filed,
No. 02-9158 (U.S. Jan. 29, 2003), Dunlap v. Litscher, 301 F.3d 873,
876 (7th Cir. 2002) (same), cert. denied, 123 S. Ct. 937 (2003), Ortiz
v. Stewart, 195 F.3d 520, 520-21 (9th Cir. 1999) (per curiam) (same),
Lopez v. Douglas, 141 F.3d 974, 975-76 (10th Cir. 1998) (per curiam)
(same), and Felker v. Turpin, 101 F.3d 657, 660-61 (11th Cir. 1996)
(per curiam) (same), with Gitten v. United States, 311 F.3d 529, 534
(2d Cir. 2002) (stating that district court has discretion to deny relief
on Rule 60(b) motion that could also be treated as successive applica-
tion), and Hess v. Cockrell, 281 F.3d 212, 214-15, 215 n.6 (5th Cir.
2002) (indicating, but not conclusively determining, that Rule 60(b)
motion may be denied on merits or treated as successive application).
We emphasize that we do not require that all Rule 60(b) motions
be treated as successive applications; instead, the proper treatment of
the motion depends on the nature of the claims presented. Once again,
this holding is consistent with the majority view among our sister cir-
cuits. See Gitten, 311 F.3d at 530; Boyd, 304 F.3d at 814; Dunn v.
Cockrell, 302 F.3d 491, 492 n.1 (5th Cir. 2002) (per curiam), cert.
denied, 123 S. Ct. 1208 (2003); Dunlap, 301 F.3d at 875-76; Cooper
v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam), pet.
for cert. filed, No. 02-9050 (U.S. Feb. 11, 2003); see also Workman
v. Bell, 227 F.3d 331, 334-35 (6th Cir. 2000) (en banc) (addressing
motion to recall mandate). But see Mobley v. Head, 306 F.3d 1096,
1096-97 (11th Cir. 2002) (discussing circuit precedent requiring that
all Rule 60(b) motions be treated as successive applications).
Our holding raises the question of how to distinguish a proper Rule
60(b) motion from a "successive [application] in 60(b)’s clothing."
Lazo v. United States, 314 F.3d 571, 573 (11th Cir. 2002) (per
curiam). There may be no infallible test for making this distinction,
but a relatively straightforward guide is that a motion directly attack-
ing the prisoner’s conviction or sentence will usually amount to a suc-
motion for reconsideration "would be construed not as a Rule 60(b)
motion, but, rather, as an unauthorized successive motion under § 2255
which the District Court may have been without jurisdiction to con-
sider").
10 UNITED STATES v. WINESTOCK
cessive application, while a motion seeking a remedy for some defect
in the collateral review process will generally be deemed a proper
motion to reconsider. Thus, a brand-new, free-standing allegation of
constitutional error in the underlying criminal judgment will virtually
always implicate the rules governing successive applications. See,
e.g., Cooper, 274 F.3d at 1274. Similarly, new 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 continu-
ing his collateral attack on his conviction or sentence.6 See, e.g., Dun-
lap, 301 F.3d at 876; cf. Eberhardt v. Integrated Design & Constr.,
Inc., 167 F.3d 861, 870 (4th Cir. 1999) ("Rule 60(b) does not autho-
rize a motion merely for reconsideration of a legal issue." (internal
quotation marks omitted)). By contrast, an 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. See, e.g.,
Dunlap, 301 F.3d at 875-76; cf. Dunn, 302 F.3d at 492 & n.1 (declin-
ing to apply limits on successive applications to Rule 60(b) motion
based on counsel error that prevented applicant from perfecting
appeal in § 2254 proceeding).
To comply with the standards set forth above, district courts must
examine the Rule 60(b) motions received in collateral review cases to
determine whether such motions are tantamount to successive appli-
cations. If so, the court must either dismiss the motion for lack of
jurisdiction or transfer it to this court so that we may perform our
gatekeeping function under § 2244(b)(3). See, e.g., Boyd, 304 F.3d at
814. Otherwise, the court may review the motion on its merits. When
the motion presents claims subject to the requirements for successive
applications as well as claims cognizable under Rule 60(b), the dis-
trict court should afford the applicant an opportunity to elect between
deleting the improper claims or having the entire motion treated as a
successive application. See Pennington, 257 F.3d at 859; cf. Emman-
uel, 288 F.3d at 649 (prescribing procedures that district court must
follow before converting pleading with different label into collateral
review application).
6
We need not decide here when, if ever, a claim presenting newly dis-
covered evidence may be reviewed under Rule 60(b)(2) without regard
to the constraints of § 2244(b)(2)(B) and § 2255 ¶ 8(1).
UNITED STATES v. WINESTOCK 11
III.
Having set forth the governing principles, we now consider the
proper disposition of Winestock’s motion for reconsideration. Wine-
stock’s motion alleges that the district court erred in rejecting his
§ 2255 claims and that he has recently discovered evidence that
would support a new claim of ineffective assistance. These claims
relate to the validity of the underlying criminal judgment and do not
suggest that Winestock was denied a fair opportunity to seek relief
through § 2255. We therefore conclude that the district court should
have treated Winestock’s motion as a successive § 2255 application.
As noted above, a prisoner whose Rule 60(b) motion presents both
cognizable and non-cognizable claims must be given an opportunity
to choose between withdrawing the improper claims and having the
entire motion dismissed or transferred. Winestock has not presented
any cognizable claims, however, so this rule does not apply to him.
Accordingly, there is no need to remand this case to the district court
for further proceedings.
At the same time, it would be inappropriate for us to let the deci-
sion of the district court stand, because it was entered without juris-
diction. Accordingly, we vacate the order denying Winestock’s
motion for reconsideration and remand to the district court with
instructions to dismiss the motion. See Boyd, 304 F.3d at 814; Dun-
lap, 301 F.3d at 876-77.
IV.
Finally, following the lead of our sister circuits, we will construe
Winestock’s notice of appeal and his appellate brief as a motion for
authorization to file a successive application. See, e.g., United States
v. Torres, 282 F.3d 1241, 1246 (10th Cir. 2002). We hold that Wine-
stock is not entitled to such authorization.
In the first two claims of his motion, Winestock asserts that the dis-
trict court erred in refusing to apply Apprendi retroactively and that
his lawyer performed ineffectively by failing to raise Apprendi claims
on appeal. Both of these claims were raised during the original § 2255
12 UNITED STATES v. WINESTOCK
proceeding (with the latter claim presented to establish cause for any
default of Winestock’s Apprendi claims). As noted above, such repet-
itive claims may be subject to automatic dismissal. In any event, nei-
ther claim relies on a new rule of law or newly discovered evidence,
and therefore neither would justify pre-filing authorization of Wine-
stock’s successive application. See 28 U.S.C.A. § 2255 ¶ 8.
Winestock’s motion further alleges that Winestock has recently
discovered that his appellate attorney was disbarred. Evidence of this
nature cannot satisfy § 2255 ¶ 8(1), however, because it contests the
fairness of the criminal proceedings without establishing "by clear
and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense." Cf. Villafuerte v. Stewart,
142 F.3d 1124, 1126 (9th Cir. 1998) (holding that evidence of judicial
bias "does not add to or subtract from the evidence of . . . guilt" and
therefore does not satisfy § 2244(b)(2)(B)); In re Buenoano, 137 F.3d
1445, 1447 (11th Cir. 1998) (per curiam) (holding that evidence that
one member of jury should have been disqualified does not indicate
actual innocence). Accordingly, we decline to authorize Winestock to
file a successive § 2255 application.
V.
For the foregoing reasons, we vacate the order of the district court
denying Winestock’s motion for reconsideration and remand with
instructions to dismiss the motion for lack of jurisdiction. Also, to the
extent Winestock is seeking authorization to file a successive applica-
tion, we deny such authorization.
VACATED AND REMANDED; AUTHORIZATION DENIED