United States District Court, D. Hawaii
ORDER DECLINING TO ISSUE CERTIFICATE OF
Oki Mollway United States District Judge.
November 10, 2016, Petitioner John Gouveia, Jr., renewed his
request for a certificate of appealability. This court
declines to issue a certificate of appealability because this
court has made no ruling to which the certificate of
appealability procedure even applies.
renewal of his request for a certificate of appealability is
apparently prompted by a notice he received from the
Clerk's Office of the United States Court of Appeals for
the Ninth Circuit. That notice, dated September 30, 2016,
included the following statement: “A briefing statement
will not be set until the district court and, if necessary,
this court determine whether a certificate of appealability
should issue.” Notwithstanding this statement in the
notice sent to Gouveia, this court received no direction from
the Ninth Circuit indicating that this court was to consider
whether to issue a certificate of appealability. Indeed,
until, in the papers he filed with this court on November 10,
2016, Gouveia mentioned the Ninth Circuit's notice
referring to a certificate of appealability, this court was
not even aware that there was any issue regarding a
certificate of appealability. This court was instead of the
belief that no ruling concerning a certificate of
appealability was required from this court.
heart of Gouveia's renewed request for a certificate of
appealability is his belief that this court has denied a
motion he brought under Rule 60(b) of the Federal Rules of
Civil Procedure. There is no dispute that Gouveia did file a
motion styled as being brought under Rule 60(b). That motion
sought reconsideration of this court's denial in 2014 of
his first motion brought under 28 U.S.C. § 2255. Both
this court and the Ninth Circuit had declined in 2014 to
issue certificates of appealability with respect to the
denial of Gouveia's first § 2255 motion. With
respect to Gouveia's Rule 60(b) motion, filed in 2015,
this court did not actually either grant or deny the motion.
Instead, this court construed the motion as a second or
successive § 2255 motion. In accordance with §
2255(h) and Ninth Circuit Rule 22-3(a), this court then
transferred the purported Rule 60(b) motion to the Ninth
Circuit for that court's consideration of whether to
certify Gouveia's second or successive motion under
§ 2255(h). In an order filed on March 27, 2016, this
court set forth the background for this transfer and this
court's reasoning. See ECF No. 596 (in Crim. No.
renewing his request for a certificate of appealability,
Gouveia cites United States v. Winkles, 795 F.3d
1134 (9th Cir. 2015), for the proposition that a
certificate of appealability is required for an appeal from
the denial of a Rule 60(b) motion. In Winkles, the
Ninth Circuit said, “We conclude-in keeping with the
Supreme Court's holding in Harbison, the text of
section 2253(c), and the policy underlying the statute-that a
COA is required to appeal the denial of a Rule 60(b) motion
for relief from judgment arising out of the denial of a
section 2255 motion.” Id. at 1142. But the
Ninth Circuit also recognized that not everything that might
be labeled a Rule 60(b) motion was necessarily a
“legitimate” Rule 60(b) motion.
Ninth Circuit in Winkles cited Gonzalez v.
Crosby, 545 U.S. 524 (2005), for its discussion of when
a litigant is bringing a “legitimate” Rule 60(b)
motion. A “legitimate” Rule 60(b) motion is one
that attacks “some defect in the integrity of the
federal habeas proceedings.” Winkles, 795 F.3d
at 1141. By contrast, a motion that asserts a federal basis
for relief from a judgment of conviction is treated as a
second or successive habeas petition. Id. The
parties in Winkles agreed that the petitioner in
that case was bringing a “legitimate” Rule 60(b)
motion. Id. Nor was there any dispute that the
“legitimate” Rule 60(b) motion had been denied.
These facts make Winkle distinguishable from the
situation Gouveia presents.
Gouveia has not filed a “legitimate” Rule 60(b)
motion. Instead, he has filed a second or successive §
2255 motion. Gouveia therefore requires the Ninth
Circuit's certification to proceed, not a certificate of
appealability from this court.
this court has not denied Gouveia's purported Rule 60(b)
motion. This court has transferred the motion without ruling
on it. In transferring the motion, this court expressly
recognized that it lacked jurisdiction to rule on the motion.
See ECF No. 596 (in Crim. No. 08-00739 SOM), Page ID
# 10549 (referring to jurisdictional bar in § 2255(h)(2)
to district court consideration of second or successive
motion and citing Ezell v. United States, 778 F.3d
762 (9th Cir. 2015), to that effect).
extent the Ninth Circuit may be waiting for a determination
by this court on whether to issue a certificate of
appealability, this court states that it declines to issue a
certificate of appealability. Even assuming Winkles
applies to Gouveia's case, Gouveia does not meet the
two-part Winkles test for the issuance of a
certificate of appealability.
first prong of the Winkles test requires a movant to
show that “jurists of reason would find it debatable
whether the district court abused its discretion in denying
the Rule 60(b) motion.” 795 F.3d at 1143. As explained
above, this court asserts that it could not have abused its
discretion in denying Gouveia's Rule 60(b) motion because
this court did not deny the motion at all. But assuming the
transfer of the motion to the Ninth Circuit could be
construed as a denial of the Rule 60(b) motion, this court
does not think jurists of reason would find it debatable that
the transfer was required by § 2255(h).
second prong of the Winkles test requires a movant
to show that “jurists of reason would find it debatable
whether the underlying section 2255 motion states a valid
claim of the denial of a constitutional right.” 795
F.3d at 1142. This court, noting its lack of jurisdiction,
did not rule on the validity of any claim Gouveia advanced in
his purported Rule 60(b) motion. Thus, this court provided
nothing for jurists of reason to debate with respect to the
validity of any claim. In any event, because Gouveia clearly
does not satisfy the first prong of ...