Argued and Submitted, June 1, 2015, Pasadena, California
Appeal from the United States District Court for the Central District of California. D.C. Nos. 2:04-cv-03527-DDP, 2:00-cr-00359-DDP-2. Dean D. Pregerson, District Judge, Presiding.
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 2255 motion and (2) whether the district court should have considered his purported amended section 2255 motion.
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.
Before: Milan D. Smith, Jr. and N. Randy Smith, Circuit Judges and Royce C. 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.
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 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.Appx. 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. 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 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. 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 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 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. ...