United States of America v. Michael Angelo Vargas

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2004 Decided December 21, 2004
No. 03-3105
UNITED STATES OF AMERICA,
APPELLEE
v.
MICHAEL ANGELO VARGAS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(97CR00020-01)
Cheryl D. Stein, appointed by the court, argued the cause
and filed the brief for appellant Michael Angelo Vargas.
Lisa H. Schertler, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, Barbara J. Valliere and John R. Fisher,
Assistant U.S. Attorneys. Roy W. McLeese, III, Assistant U.S.
Attorney, entered an appearance for appellee.
Before: EDWA RDS and RANDOLPH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RANDOLPH.

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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affirmed in an unpublished opinion.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 “[w]hile 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

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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
or successive” § 2255 petition requiring a certification from a
court of appeals. See 28 U.S.C. §§ 2244(b)(1) & 2255; Felker
v. Turpin, 518 U.S. 651, 662 (1996). The positions of the
circuits are fairly summarized in In re Abu-Ali Abdur’Rahman,
No. 02-6547, 2004 U.S. App. LEXIS 25609, at *9-11 (6th Cir.
Dec. 13, 2004) (en banc). Despite our order, Vargas does not
want us to treat his application for a COA as a request to have
us retroactively certify his Rule 60(b) motion. Even if we could
do this – and we express no opinion on the subject – our
appellate jurisdiction depends initially on whether a prisoner
needs a COA to appeal the denial of his Rule 60(b) motion in a
§ 2255 (or habeas) proceeding. See Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). In many of the decisions about when
Rule 60(b) motions should be viewed as successive § 2255
petitions, the opinion makes clear that the court of appeals had
first issued a COA to establish its appellate jurisdiction. See
Rodwell v. Pepe, 324 F.3d 66, 69 (1st Cir. 2003); Harris v .
United States, 367 F.3d 74, 77 (2d Cir. 2004); United States v.
Winestock , 340 F.3d 200, 202 (4th Cir. 2003); Thompson v.
Calderon, 151 F.3d 918, 920 (9th Cir. 1998); Gonzalez v. Sec’y
for Dep’t of Corr., 366 F.3d 1253, 1267-68 (11th Cir. 2004) (en
banc). Vargas himself recognized that he needed a COA in
order to get appellate review. At last count, seven courts of
appeals have interpreted 28 U.S.C. § 2253(c)(1) to require a
COA in cases such as his. Kellogg v. Strack, 269 F.3d 100, 103
(2d Cir. 2001) (per curiam); Morris v. Horn, 187 F.3d 333, 336
(3d Cir. 1999); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.
2004); Rutledge v. United States, 230 F.3d 1041, 1046-47 (7th
Cir. 2000); Zeitvogel v. Bowersox, 103 F.3d 56, 57 (8th Cir.
1996) (per curiam order); Langford v. Day, 134 F.3d 1381, 1383

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(9th Cir. 1998); Gonzalez, 366 F.3d at 1262-67 (11th Cir. 2004).
We now make it eight.
Section 2253(c)(1)(B) states:
(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to
the court of appeals from –
* * *
(B) the final order in a proceeding under section
2255.
This was a § 2255 proceeding and the denial of Vargas’s Rule
60(b) motion was a final order, although his appeal – if
permitted – would not bring up the underlying judgment. See,
e.g., Browder v. Director, Illinois Dep’t of Corr., 434 U.S. 257,
263 n.7 (1978); Derrington-Bey v. District of Columbia Dep’t of
Corr., 39 F.3d 1224, 1226 (D.C. Cir. 1994). The only possible
doubt stems from the word “the” in subsection (B), which might
signify that only one final order per § 2255 proceeding requires
a COA, the most likely candidate being the judgment denying
the § 2255 petition. As against this, the Dictionary Act provides
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. Here the context hardly indicates otherwise. A
statute’s structure is part of its context, and so is its purpose.
See Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997).
The purpose of § 2253(c)(1)(B) is to prevent frivolous cases
from clogging appellate dockets and to promote finality. See
Barefoot v. Estelle, 463 U.S. 880, 892 (1983) (predecessor
statute). As several courts have reasoned, it would make no
sense for Congress to require the screening of appeals from

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judgments denying § 2255 petitions yet allow appeals from
denials of Rule 60(b) motions seeking to reopen those
judgments. See, e.g., Gonzalez, 366 F.3d at 1264; Kellogg, 269
F.3d at 103.
Vargas therefore must satisfy us that he has, in the words of
§ 2253(c)(2), “made a substantial showing of the denial of a
constitutional right.” It is quite obvious that he can make no
such showing. The issue he seeks to raise deals not with a
constitutional right, but with the district court’s application of
Rule 60(b). The court did not deny his motion on procedural
grounds. Compare Slake v. McDaniel, 529 U.S. 473, 478
(2000). The court denied it on the ground that the judgment was
not void and that Vargas had presented nothing to warrant
exercise of the court’s discretion under Rule 60(b)(6). We
therefore refuse to issue a COA.
Appeal dismissed.

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