justice or 14 judge issues a certificate of appealability, an appeal may not be… v. Denham, 623 F. App’x 932, 933 10th Cir. 2015 denying a COA to appeal the 12 denial…

16‐124; 16‐125
Torres v. United States
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
_________________________ 3
4
August Term, 2015 5
6
(Submitted: April 6, 2016 Decided: August 9, 2016) 7
8
Docket Nos. 16‐124; 16‐125 9
_________________________ 10
11
G EORGE TORRES , 12
13
Petitioner‐Appellant, 14
15
‐‐ v. ‐‐ 16
17
U NITED S TATES OF AMERICA, 18
19
Respondent‐Appellee. 20
_________________________ 21
22
Before: 23
POOLER and PARKER , Circuit Judges.1 24
_________________________ 25
1 Judge Livingston, a member of the original panel, subsequently recused herself.
Therefore, this case is decided by the two remaining members of the panel
pursuant to Internal Operating Procedure E(b) of the Local Rules of the United
States Court of Appeals for the Second Circuit.

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2
Appellant George Torres moves for a certificate of appealability to appeal 1
the district court’s order denying his Fed. R. Civ. P. 60(d) motion to set aside the 2
court’s order denying his 28 U.S.C. § 2255 motion. We hold that a certificate of 3
appealability is required to appeal the denial of a Fed. R. Civ. P. 60(d) motion in a 4
§ 2255 proceeding, and we DENY Appellant’s motion for a certificate of 5
appealability and DISMISS the appeal. 6
_________________________ 7
8
G EORGE TORRES , Estill, South Carolina, pro se. 9
10
MARGARET G ARNETT, United States Attorney’s Office for the Southern 11
District of New York, New York, New York, for Respondent‐Appellee. 12
_________________________ 13
14
PER C URIAM : 15
George Torres, pro se, moves for a certificate of appealability (“COA”), 16
permitting him to appeal an order entered by the United States District Court for 17
the Southern District of New York, (Chin, J., sitting by designation). The order 18
denied Torres’s Fed. R. Civ. P. 60(d) motion for relief from the District Court’s 19
prior order denying his 28 U.S.C. § 2255 motion. In Kellogg v. Strack, 269 F.3d 100 20
(2d Cir. 2001), this Court held that a COA is required to appeal a district court’s 21
denial of a Rule 60(b) motion for relief from judgment when the underlying 22

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3
order denied 28 U.S.C. § 2254 habeas relief. Because the principles animating 1
Kellogg apply with equal force in the Rule 60(d) context, we now hold that a COA 2
is required to appeal a district court’s denial of a Rule 60(d) motion when the 3
underlying order denied § 2255 relief. 4
FACTUAL AND PROCEDURAL BACKGROUND 5
In November of 2013, Torres filed a 28 U.S.C. § 2255 motion challenging 6
his federal conviction for conspiracy to commit murder. The District Court 7
denied the motion, and Torres then moved under Fed. R. Civ. P. 60(d) to set 8
aside the denial on the grounds that the Government had committed fraud on 9
the court. The district court denied Torres’s Rule 60(d) motion and denied a 10
COA. Torres appealed, and he moves in this Court for a COA. 11
DISCUSSION 12
A petitioner’s right to appeal an order denying a § 2255 motion is 13
governed by 28 U.S.C. § 2253(c), which provides that “[u]nless a circuit justice or 14
judge issues a certificate of appealability, an appeal may not be taken to the court 15
of appeals from . . . (B) the final order in a proceeding under section 2255.” 28 16
U.S.C. § 2253(c)(1). The question presented by Torres’s COA motion is whether a 17

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4
district court’s denial of a Fed. R. Civ. P. 60(d) motion for relief from an order 1
denying a § 2255 motion is governed by this provision, thereby requiring that a 2
COA be issued before the appeal may go forward. 3
We addressed a nearly identical question in Kellogg. In Kellogg, we 4
explained that, because an order denying a Rule 60(b) motion is a “final order,” 5
the plain text of § 2253(c)(1) makes the COA requirement applicable to an order 6
denying a Rule 60(b) motion in a habeas proceeding under § 2254. 269 F.3d at 7
102‐03. The same principle applies here: because an order denying a Rule 60(d) 8
motion is a final order, § 2253(c)(1)’s COA requirement applies to an order 9
denying a Rule 60(d) motion in a § 2255 proceeding. Our conclusion comports 10
with the practice of the other Circuits that have addressed the issue. See Gregory 11
v. Denham, 623 F. App’x 932, 933 (10th Cir. 2015) (denying a COA to appeal the 12
denial of a Rule 60(d) motion in a § 2255 proceeding); United States v. Russell, 432 13
F. App’x 276, 276‐77 (4th Cir. 2011) (same); Thompkins v. Berghuis, 509 F. App’x 14
517, 519 (6th Cir. 2013) (noting that the Court had previously granted a COA to 15
appeal the denial of a joint Rule 60(b) and Rule 60(d) motion in a § 2254 habeas 16

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5
proceeding).2 Indeed, it would be inconsistent to apply the COA requirement in 1
the Rule 60(b) context, but not the rule 60(d) context. Rule 60(b) and Rule 60(d) 2
serve a similar purpose: to allow district courts, in appropriate circumstances, to 3
grant relief from a judgment or final order. See Fed. R. Civ. P. 60 (titled “Relief 4
from a Judgment or Order”). 5
We thus expressly hold that a petitioner must obtain a COA to appeal the 6
denial of a Rule 60(d) motion in a § 2255 proceeding. We now address the merits 7
of Torres’s COA motion. In order to obtain a COA, Torres must show that 8
“(1) jurists of reason would find it debatable whether the district court abused its 9
discretion in denying his Rule 60[(d)] motion, and (2) jurists of reason would find 10
it debatable whether the underlying [§ 2255 motion],” in light of the grounds 11
alleged to support the 60(d) motion, “states a valid claim of the denial of a 12
constitutional right.” Kellogg, 269 F.3d at 104. We have reviewed the record and 13
conclude that Torres has not made the requisite showing. Accordingly, it is 14
2 Although Thompkins was decided in the § 2254 habeas context, its reasoning
applies with equal force in the § 2255 context. See Jackson v. Albany Appeal Bureau
Unit, 442 F.3d 51, 54 n.2 (2d Cir. 2006) (“Since § 2254 and 28 U.S.C. § 2255 are
generally seen as in pari materia, the reasoning of cases in the context of § 2254
petitions applies equally to § 2255 petitions.” (internal quotation marks
omitted)).

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6
hereby ORDERED that Torres’s motion for a COA is DENIED and the appeal is 1
DISMISSED. 2

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