                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-6049


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

DAVID HILL,

                 Defendant - Appellant.



                             No. 09-6413


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

DAVID HILL,

                 Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (1:01-cr-00191-CMH-1)


Submitted:    February 25, 2011            Decided:   March 21, 2011


Before NIEMEYER, SHEDD, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.


David Hill, Appellant Pro Se.      Dana James Boente, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            In this consolidated proceeding, David Hill seeks to

appeal two orders entered by the district court: (1) an order

construing his first Fed. R. Civ. P. 60(b) motion as a Fed. R.

Crim. P. 33 motion for new trial and dismissing it as time-

barred (No. 09-6049); and (2) an order construing his second

Rule 60(b) motion as a motion for reconsideration and denying it

(No. 09-6413). ∗        We dismiss the appeals.

            “[D]istrict courts must treat Rule 60(b) motions as

successive collateral review applications when failing to do so

would allow the applicant to evade the bar against relitigation

of claims presented in a prior application or the bar against

litigation    of   claims     not    presented      in   a   prior   application.”

United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003)

(emphasis     in   original)        (internal    quotation      marks     omitted).

Accordingly,       “a     motion    directly     attacking       the     prisoner’s

conviction    or    sentence       will   usually    amount    to    a   successive

application, while a motion seeking a remedy for some defect in

the collateral review process will generally be deemed a proper

motion to reconsider.”         Id. at 207.


     ∗
       We initially ordered a limited remand in No. 09-6413 for a
determination of whether the notice of appeal was timely filed.
Upon further consideration, we conclude that the appeals are
civil in nature, and No. 09-6413 is therefore timely.



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              To the extent that Hill’s Rule 60(b) motions in both

appeals   attack       his   convictions           or    restate       issues       previously

raised in his 28 U.S.C.A. § 2255 (West Supp. 2010) motion, we

conclude that the motions do not comport with the purpose of

Rule 60(b) and that the district court should have dismissed

them as unauthorized § 2255 motions.                     See Winestock, 340 F.3d at

207 (“[N]ew legal arguments or proffers of additional evidence

will usually signify that the prisoner is not seeking relief

available      under    Rule     60(b)        but       is    instead          continuing     his

collateral       attack         on      his        conviction             or      sentence.”).

Accordingly,      we     deny        Hill’s    motion         for     a        certificate     of

appealability and dismiss this portion of the appeals.

              Hill’s contention, in No. 09-6049, that the Government

proceeded in a fraudulent manner during the § 2255 proceeding,

however, is the proper subject of a Rule 60(b) motion.                                  See id.

(“[A]n example of a proper Rule 60(b) claim is an allegation

that government agents perpetrated a fraud on the court during

the   collateral       review    proceedings.”).                An    appeal      may   not    be

taken to this court from the final order in a proceeding under

§ 2255,   including       the    denial       of    a    Rule    60(b)         motion   seeking

relief from the underlying denial of a post-conviction motion,

unless    a   circuit     justice       or    judge          issues    a       certificate     of

appealability.         28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone,

369 F.3d 363, 368-70 (4th Cir. 2004).                         When the district court

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denies    relief       on     procedural         grounds,       the     prisoner      must

demonstrate     both    that        the    dispositive         procedural     ruling    is

debatable and that the motion states a debatable claim of the

denial of a constitutional right.                     Slack v. McDaniel, 529 U.S.

473, 484-85 (2000).

             While the district court may have procedurally erred

in denying Hill’s fraud upon the court claim, we conclude that

application of an alternative procedural ground renders Hill’s

appeal futile.     See Reid, 369 F.3d at 372 n.5 (suggesting that

procedural    ground        not   employed       by    district       court   may   render

appeal futile).        Here, Hill did not file a timely Rule 60(b)(3)

motion because he filed it three years after the district court

denied    § 2255   relief,          well     beyond      the    authorized      one-year

period.     Great Coastal Express, Inc. v. Int’l Bhd. of Teamsters,

675 F.2d 1349, 1355 (4th Cir. 1982) (“A motion under [Rule]

60(b)(3),    however,        must    be     made      within    one    year   after    the

judgment was entered.”).                  We therefore deny a certificate of

appealability and dismiss the fraud upon the court claim.

             Additionally,          under    Winestock,         we     have   considered

Hill’s notices of appeal and informal brief as an application to

file a second or successive § 2255 motion.                        In order to obtain

authorization to file a successive § 2255 motion, a prisoner

must assert claims based on either:



                                             5
        (1) newly discovered evidence that, if proven and
        viewed in light of the evidence as a whole, would be
        sufficient to establish by clear and convincing
        evidence that no reasonable factfinder would have
        found the movant guilty of the offense; or (2) a new
        rule of constitutional law, made retroactive to cases
        on collateral review by the Supreme Court, that was
        previously unavailable.

28 U.S.C.A. § 2255(h).          Because Hill’s claims do not satisfy

either of these criteria, we conclude that authorization to file

a successive § 2255 motion should not be granted.

            Accordingly, while we grant Hill’s motions to amend

his informal brief, we dismiss the majority of Hill’s claims set

forth in his two Rule 60(b) motions as unauthorized successive

§ 2255 motions and deny a certificate of appealability as to

Hill’s fraud upon the court claim and dismiss that claim, as

well.      We also deny Hill authorization to file a successive

§ 2255 motion.     We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before    the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    DISMISSED




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