                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-7231


BILLY RAHEEM FORTUNE,

                    Petitioner - Appellant,

             v.

HAROLD W. CLARKE, Director of the Virginia Department of Corrections,

                    Respondent - Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Arenda L. Wright Allen, District Judge. (2:13-cv-00687-AWA-TEM)


Submitted: January 23, 2018                                  Decided: February 23, 2018


Before MOTZ, WYNN, and FLOYD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Billy Raheem Fortune, Appellant Pro Se. Donald Eldridge Jeffrey, III, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Billy Raheem Fortune seeks to appeal the district court’s order denying his Fed. R.

Civ. P. 60(b)(2) motion requesting relief from the court’s order dismissing his 28 U.S.C.

§ 2254 (2012) petition as time-barred. The order is not appealable unless a circuit justice

or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012); United

States v. McRae, 793 F.3d 392, 397-99 (4th Cir. 2015). 1 A certificate of appealability will

not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies

this standard by demonstrating that reasonable jurists would find that the district court’s

assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S.

473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district

court denies relief on procedural grounds, the prisoner must demonstrate both that the

dispositive procedural ruling is debatable, and that the petition states a debatable claim of

the denial of a constitutional right. Slack, 529 U.S. at 484-85. We conclude that Fortune

has made the requisite showing. We therefore grant Fortune leave to proceed in forma

pauperis and grant a certificate of appealability.

       The district court concluded that the timeliness of a Rule 60(b)(2) motion is a

jurisdictional requirement and denied Fortune’s motion as untimely for that reason. We


       1
         Fortune’s motion qualifies as a true Rule 60(b)(2) motion because he challenged
the dismissal of his original petition as time-barred. See Gonzalez v. Crosby, 545 U.S. 524,
532 n.4 (2005) (holding that movant presents true Rule 60(b) motion “when he . . . asserts
that a previous ruling which precluded a merits determination was in error,” including
dismissal of action as time-barred).

                                              2
review this decision for abuse of discretion. Moses v. Joyner, 815 F.3d 163, 166 (4th Cir.

2016), cert. denied, 137 S. Ct. 1202 (2017). The court correctly concluded that a Rule

60(b)(2) “must be made . . . no more than a year after the entry of the judgment or order or

the date of the proceeding” from which the litigant seeks relief. Fed. R. Civ. P. 60(c)(1).

However, we have held that “the Rule 60(b) one-year filing deadline is an affirmative

defense,” not a jurisdictional bar. McRae, 793 F.3d at 401. We have further explained that

a district court’s failure to recognize that it has discretion is an abuse of discretion.

Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 366 (4th Cir. 2012). Because the district

court did not recognize its discretion here, we vacate the court’s judgment and remand for

further proceedings. 2

       We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                            VACATED AND REMANDED




       2
         In so holding, we express no opinion as to the timeliness of the motion or the
ultimate merit of Fortune’s claims.

                                             3
