Citations
- 393 F.3d 172
Full opinion text
RANDOLPH, Circuit Judge.
Michael A. Vargas is serving a lengthy sentence for committing federal crimes. Invoking 28 U.S.C. § 2255, he filed an action to have his conviction set aside. The district court ruled against him in 2001 and this court affirmed in an unpublished opinion. In 2003, Vargas filed a motion seeking relief under FED. R. CIV. P. 60(b) from the district court’s denial of his § 2255 petition. The rule permits a district court to relieve a party from a judgment on several grounds, only two of which — “(4) the judgment is void” and “(6) any other reason justifying relief from the operation of the judgment” — are relevant here because Vargas sought relief more than a year after judgment. After the district court denied his Rule 60(b) motion, Vargas sought a certificate of appealability — a “COA” — under 28 U.S.C. § 2253(c)(1) in order to raise the following issue on ' appeal: “Whether this Court erred , in treating the Petitioner’s properly filed Rule 60(b) Motion as a ‘second or successive’ motion under 28 U.S.C. § 2255.” The district court refused to issue a COA because it had not denied the Rule 60(b) motion on that ground. Vargas then moved in this court for a COA to raise the question whether “the District Court erred in declining to issue a COA on the mistaken belief that appellant had one year to file his Civil Rule 60(b)(6) motion for relief from judgment.”
Rather than grant or deny a COA, we referred the matter to a merits panel. Our order stated that “[wjhile not otherwise limited, the parties are directed to address in their briefs” the following questions: whether Vargas’s Rule 60(b) motion “was in fact a second or successive § 2255 motion requiring this court’s authorization; whether the motion for a certificate of appealability filed in this court should be construed as a motion pursuant to 28 U.S.C. § 2244(b) for .leave to file a second or successive” § 2255 petition; and “if so, whether it should be denied because the motion alleges neither newly discovered evidence nor a new rule of constitutional law made retroactive by the Supreme Court.”
Prompting the order was a disagreement among the circuits about when a Rule 60(b) motion should be considered a “second