               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROBERT L. ROSE,                         No. 18-35630
             Petitioner-Appellant,
                                          D.C. No.
                v.                     9:13-cv-00156-
                                         DWM-JCL
LYNN GUYER; ATTORNEY GENERAL
FOR THE STATE OF MONTANA,
            Respondents-Appellees.        OPINION


     Appeal from the United States District Court
             for the District of Montana
     Donald W. Molloy, District Judge, Presiding

       Argued and Submitted February 4, 2020
                Seattle, Washington

                 Filed June 18, 2020

     Before: Milan D. Smith, Jr., N. Randy Smith,
         and Daniel A. Bress, Circuit Judges.

            Opinion by Judge N.R. Smith
2                          ROSE V. GUYER

                            SUMMARY*


                          Habeas Corpus

    The panel denied Montana state prisoner Robert Rose a
certificate of appealability (COA) and dismissed for lack of
jurisdiction Rose’s appeal from the district court’s order
denying his motion under Fed. R. Civ. P. 70(a) to enforce the
district court’s conditional writ of habeas corpus, in a case in
which Rose was convicted, after a jury trial, of aggravated
kidnapping, assault with a weapon, and assault on a peace
officer, and sentenced to 100 years in prison with 20 years
suspended.

    The district court granted the conditional habeas writ on
Rose’s claim that his trial attorney rendered ineffective
assistance by failing to inform him of the state’s plea
proposal. The conditional writ required the state to reoffer
Rose equivalent terms of the original plea proposal. After
Rose accepted the state’s reoffered plea proposal, the state
court rejected the final plea agreement. In his Rule 70(a)
motion, Rose argued that the conditional writ entitled him to
immediate release from an unconstitutional detention because
the state did not reoffer him an equivalent plea proposal.

    The panel held that an order denying a Rule 70(a) motion
to enforce a conditional writ of habeas corpus pertains to the
district court’s adjudication of the habeas petition, and
28 U.S.C. § 2253(c)(1)(A) therefore requires a habeas


    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       ROSE V. GUYER                         3

petitioner to obtain a COA in order to appeal the district
court’s order.

    The panel denied Rose a COA because he failed to make
the requisite showing under 28 U.S.C. § 2253(c)(2) that
jurists of reason would find it debatable whether the district
court abused its discretion in denying the Rule 70(a) motion.
After taking an initial peek at the merits, the panel concluded
that it is beyond reasonable debate that the district court did
not abuse its discretion in concluding that the reoffered plea
proposal and original plea proposal were equivalent with
respect to the State’s sentencing recommendations, conditions
of supervision and waiver of the right to appeal, and
treatment of Rose’s status as a persistent felony offender.
The panel therefore dismissed the appeal for lack of
jurisdiction.


                         COUNSEL

David F. Ness (argued), Assistant Federal Defender; Anthony
R. Gallagher, Federal Defender; Federal Defenders of
Montana, Great Falls, Montana; for Petitioner-Appellant.

Tammy K. Plubell (argued), Assistant Attorney General;
Timothy C. Fox, Attorney General; Attorney General’s
Office, Helena, Montana; for Respondents-Appellees.
4                      ROSE V. GUYER

                         OPINION

N.R. SMITH, Circuit Judge:

    Pursuant to 28 U.S.C. § 2253(c)(1)(A), a habeas petitioner
must obtain a certificate of appealability (“COA”) in order to
appeal a district court’s order denying a motion to enforce a
conditional writ of habeas corpus, brought under Federal Rule
of Civil Procedure 70(a). Such an order does pertain to the
district court’s adjudication of the habeas petition, thus
requiring a COA. See United States v. Winkles, 795 F.3d
1134, 1142 (9th Cir. 2015); see also Payton v. Davis,
906 F.3d 812, 821 (9th Cir. 2018). Petitioner-Appellant
Robert L. Rose (“Rose”) appeals from the denial of his Rule
70(a) motion to enforce a conditional writ of habeas corpus.
Upon application, the district court denied Rose a COA.
Because he now fails to make the requisite showing under
§ 2253(c)(2) to permit us to issue a COA, we deny him a
COA and dismiss his appeal for lack of jurisdiction.

                              I

    After Rose kidnapped and severely cut his co-worker with
a knife and sprayed a law enforcement officer with a can of
pepper spray, Rose was charged with aggravated kidnapping,
assault with a weapon, and assault on a peace officer. More
than a year later, with Rose’s trial date approaching, the
county attorney of Ravalli County (the “State”) sent Rose’s
defense attorney a letter proposing the general terms of a plea
agreement. The letter stated:

       In an effort to settle this case, I am willing to
       offer a plea agreement along the following
       lines:
                       ROSE V. GUYER                         5

          I will dismiss the Aggravated Kidnapping
       charge and the felony Assault on a Judicial
       Officer if your client pleads “open” to Assault
       with a Weapon and a misdemeanor Assault
       which would run consecutively to the Assault
       with a Weapon.

          Additionally, I would agree to cap the
       Persistent Felony Offender at 10 years with 5
       suspended. This would run consecutive to the
       Assault with a Weapon. I would file an
       Amended Information with the above charges.

          Each party is free to argue for what it
       deems is an appropriate sentence as to length
       and [Department of Corrections] versus
       [Montana State Prison].

           Under this proposed plea, I have no
       objection to a “no contest” plea.

       ....

       All other terms and conditions, including the
       length of parole or probation, would be
       subject to argument by both sides with the
       final decision being made by the Court.

    Upon receipt of the letter, Rose’s attorney determined that
the plea proposal contained an illegal provision under
Montana law—Rose’s attorney believed that the State could
not charge or sentence Rose separately for his status as a
persistent felony offender (“PFO”). Based on that belief, and
before apprising Rose of the plea proposal, Rose’s attorney
6                           ROSE V. GUYER

attempted to negotiate what he believed to be a valid plea
proposal with the State the following day. But instead of
negotiating, the State withdrew the offer and expressed its
intention to go to trial.

    After a four-day jury trial, Rose was convicted of all three
counts and sentenced to 100 years in state prison with
20 years suspended. Rose’s convictions and sentence were
affirmed on direct appeal to the Montana Supreme Court. See
State v. Rose, 202 P.3d 749, 768 (Mont. 2009). He was also
denied post-conviction relief in the state courts. See Rose v.
State, 304 P.3d 387, 395 (Mont. 2013).

    Following the state-court post-conviction proceedings,
Rose filed a habeas petition under 28 U.S.C. § 2254 in federal
district court. He alleged a panoply of claims,1 including a
claim for ineffective assistance of counsel based upon his trial
attorney’s alleged failure to inform him of the State’s plea
proposal. On this claim, the district court granted Rose a
conditional writ of habeas corpus (“Conditional Writ”), which
ordered:

         On or before June 30, 2016, the State is
         required to reoffer the equivalent terms of the
         plea agreement proposed on May 21, 2003.
         The state trial court can then exercise
         discretion in deciding whether to vacate the
         conviction from trial and accept the plea or
         leave the conviction undisturbed. . . . If the
         State does not meet the deadline for reoffering



     1
       The district court denied all of the rest of Rose’s claims, and he does
not appeal the decision as to those claims.
                       ROSE V. GUYER                          7

        the plea agreement, Rose shall be immediately
        released from custody.

    Rose appealed that order from the district court,
challenging the adequacy of the remedy. See Rose v.
Kirkegard, 720 F. App’x 406, 406 (9th Cir. 2018)
(unpublished). We affirmed the district court, finding that it
“ordered the remedy articulated by the Supreme Court for
circumstances where ‘inadequate assistance of counsel causes
nonacceptance of a plea offer and further proceedings lead to
a less favorable outcome.’” Id. (alterations adopted) (quoting
Lafler v. Cooper, 566 U.S. 156, 160 (2012)).

    Pursuant to the district court’s Conditional Writ, the State
sent Rose’s new, federally appointed attorney a letter that
reproposed the general terms of a plea agreement. The letter
stated:

            [I]n compliance with [the Conditional
        Writ] the State will agree to the following
        terms, equivalent to [the] May 21, 2003 offer:

            1. The State will move to dismiss the
               charges of Aggravated Kidnapping
               and Assault on a Judicial/Peace
               Officer;

            2. Mr. Rose will plead guilty or no
               contest to the charges of Assault with
               a Weapon and misdemeanor Assault;

            3. The State will recommend a sentence
               of;
8                      ROSE V. GUYER

                a. Assault with a Weapon: thirty (30)
                   years, as a persistent felony
                   offender, with five (5) years
                   suspended; and

                b. Assault (misdemeanor): six (6)
                   months jail time, consecutive to
                   the sentence on the assault with a
                   weapon;

            4. Mr. Rose will be free to recommend
               any lawful sentence.

        ....

        If [Rose] does accept this offer, I will
        formalize it in a standard plea agreement
        format used in Ravalli County for execution
        by all of us.

Rose accepted the State’s plea proposal upon receipt.
Thereafter, the State prepared a final plea agreement, which
Rose and his attorney signed.

    However, when the State and Rose presented the final
plea agreement to the state trial court at the change of plea
hearing, the court rejected it. The court stated it was rejecting
the agreement because of Rose’s “complete unwillingness to
accept any responsibility for his actions at the time the
[original plea proposal] was initially offered.” As a result,
Rose’s convictions and sentence were left undisturbed. The
state trial court’s rejection of the final plea agreement was
affirmed on appeal to the Montana Supreme Court. See State
v. Rose, 406 P.3d 443, 448 (Mont. 2017).
                        ROSE V. GUYER                           9

    After the state trial court rejected the final plea agreement
and the Montana Supreme Court affirmed the rejection, Rose
returned to federal district court to file a Federal Rule of Civil
Procedure 70(a) motion to enforce the Conditional Writ. See
Fed. R. Civ. P. 70(a) (“If a judgment requires a party . . . to
perform [a] specific act and the party fails to comply within
the time specified, the court may order the act to be done . . .
by another person appointed by the court. When done, the act
has the same effect as if done by the party.”). For the first
time, Rose argued that, because the State did not reoffer him
an equivalent plea proposal, the State’s failure to comply with
the Conditional Writ entitled him to immediate release from
an unconstitutional detention.

    The federal district court denied the motion without a
hearing. In deciding that the State had “timely and faithfully
executed” the Conditional Writ, the court rejected the
suggestion that Rose was not offered an equivalent plea
proposal because of two discrepancies between the original
and reoffered plea proposals. First, the court determined that
the original plea proposal was “illegal in form because it
called for separate sentences for Assault with a Weapon and
for Rose’s designation as a [PFO].” The court explained that,
“[u]nder Montana law, sentences imposed based upon an
offender’s [PFO status] replace the sentence for the
underlying felony.” Therefore, the court found that the State
could not have lawfully reoffered this exact term in 2016.
Second, the court determined that, although the reoffered plea
proposal contained a specific sentencing recommendation
(whereas the original plea proposal left the State largely free
to recommend a sentence it deemed appropriate), it was
“entirely possible” for the State “to recommend the same
aggregate sentence” under both proposals. Furthermore, the
court noted that both proposals anticipated that additional
10                         ROSE V. GUYER

terms would be incorporated into a final plea agreement if
Rose accepted the offer. Finding that the original and
reoffered plea proposals were equivalent, the court concluded
that Rose was not entitled to relief under Rule 70(a). 2

    Rose then filed an application with the district court for a
COA to appeal the denial of his Rule 70(a) motion. The
district court denied Rose’s COA application, but noted that
it was “not aware of any authority requiring a [COA] to issue
from an order denying a motion under Rule 70.” The court
also ordered that Rose’s application for a COA be treated as
a timely notice of appeal.

    Because Rose did not obtain a COA from the district
court, a motions panel of this Court considered whether to
issue Rose a COA. Finding it “an open question as to whether
a [COA] is required to appeal from the denial of a Rule 70
motion,” the motions panel referred Rose’s appeal to this
panel “to determine whether a COA is required under 28
U.S.C. § 2253(c)(1)(A) and, if so, whether [Rose] is entitled
to a COA.” The parties were also directed to brief the merits
of Rose’s appeal.

                                   II

    We must first resolve an open question in this Circuit:
whether 28 U.S.C. § 2253(c)(1)(A) requires a habeas
petitioner to obtain a COA to appeal the denial of a motion to
enforce a conditional writ of habeas corpus brought under



     2
       The court also found Rose’s arguments effectively “moot” and
“immaterial,” because Rose accepted and the state trial court rejected the
final plea agreement.
                           ROSE V. GUYER                                11

Federal Rule of Civil Procedure 70(a). For the following
reasons, we conclude the statute does require a COA.

                                    A

     It is well established that, before a federal court may
entertain an appeal from a “final order in a habeas corpus
proceeding,” 28 U.S.C. § 2253(c)(1)(A), a petitioner “must
first seek and obtain a COA,” Miller-El v. Cockrell, 537 U.S.
322, 335–36 (2003).3 A COA is “a jurisdictional
prerequisite,” id. at 336, which serves a “gatekeeping
function” by “screen[ing] out issues unworthy of judicial time
and attention and ensur[ing] that frivolous claims are not
assigned to merits panels,” Thaler, 565 U.S. at 145.

    The Supreme Court in Harbison v. Bell, 556 U.S. 180
(2009), clarified that § 2253(c)(1)(A) governs only appeals
from “final orders that dispose of the merits of a habeas
corpus proceeding—a proceeding challenging the lawfulness
of the petitioner’s detention.” Id. at 183. It thus found that
“[a]n order that merely denies a motion to enlarge the
authority of appointed counsel (or that denies a motion for
appointment of counsel) is . . . not subject to the COA
requirement.” Id.




    3
      Under § 2253(c)(1)(A), a habeas petitioner must obtain a COA from
either a district court judge or a circuit judge. Hanson v. Mahoney,
433 F.3d 1107, 1111 (9th Cir. 2006); see also Fed. R. App. P. 22(b)(1)
(“In a habeas corpus proceeding . . . , the applicant cannot take an appeal
unless a circuit justice or a circuit or district judge issues a [COA] under
28 U.S.C. § 2253(c).”). “Habeas Corpus Rule 11(a) requires district judges
to decide whether to grant or deny a COA in the first instance.” Gonzalez
v. Thaler (Thaler), 565 U.S. 134, 143 n.5 (2012).
12                         ROSE V. GUYER

    We have since “interpreted Harbison very narrowly,”
Payton, 906 F.3d at 819, applying § 2253(c)(1)(A)’s COA
requirement to appeals from orders denying certain post-
judgment motions. In Winkles, we held “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.” 795 F.3d at 1142.4 We found no indication in
Harbison that an order denying a Rule 60(b) motion—which
“allows a party to seek relief from a final judgment, and
request reopening of his case, under a limited set of
circumstances including fraud, mistake, and newly discovered
evidence,” Gonzalez v. Crosby (Crosby), 545 U.S. 524, 528
(2005)—would not be subject to the COA requirement,
Winkles, 795 F.3d at 1141–42. We determined that the order
at issue in Harbison was unlike an order on a Rule 60(b)
motion, in that the Harbison order “was wholly distinct from
the habeas petition” and “did not pertain to the district court’s
adjudication of the habeas petition.” Id. at 1142. For example,
the Harbison order neither “touch[ed] on the merits of the
habeas petition nor consider[ed] any alleged defects in the
integrity of the proceedings.” Id.5 In contrast, “a legitimate
Rule 60(b) motion for relief from judgment arising out of the


     4
      Section 2255 provides “habeas-like” relief for federal prisoners,
Clay v. United States, 537 U.S. 522, 528 (2003), and includes a
“functionally identical” COA requirement as petitions under § 2254,
Winkles, 795 F.3d at 1141. We have thus found cases involving § 2255
motions controlling in the context of a § 2254 habeas petition. See, e.g.,
Payton, 906 F.3d at 818–20.
     5
      We had also previously “extended Harbison” in Lambright v. Ryan,
698 F.3d 808 (9th Cir. 2012), so as not to require a COA “to appeal an
order modifying a protective order,” which “had similarly little to do with
the adjudication of the habeas petition.” Winkles, 795 F.3d at 1142 (citing
Lambright, 698 F.3d at 817 n.2).
                       ROSE V. GUYER                         13

denial of a section 2255 motion pertains to the district court’s
adjudication of the section 2255 motion.” Id. We thus
required the petitioner to obtain a COA. Id.

    We then applied Winkles’s reasoning in Payton, holding
that a habeas petitioner must obtain a COA to appeal an order
denying a Rule 60(d) motion, 906 F.3d at 820, which
“empowers courts to ‘set aside a judgment for fraud on the
court,’” id. at 818 (quoting Fed. R. Civ. P. 60(d)(3)). Citing
Winkles, we explained that “a COA is required to appeal an
order ‘pertaining to the district court’s adjudication of the
habeas petition.’” Id. at 819 (alteration adopted) (quoting
Winkles, 795 F.3d at 1142). This includes (but is not limited
to) “orders that ‘touch on any alleged defects in the integrity
of the proceedings arising out of the district court’s
adjudication of the petition.’” Id. at 819–20 (alterations
adopted) (quoting Winkles, 795 F.3d at 1142). Because a
“Rule 60(d) motion attacks the integrity of the federal habeas
proceedings,” we concluded that a COA was necessary to
appeal a denial. Id. at 820.

    Winkles and Payton have defined our task accordingly. To
determine whether § 2253(c)(1)(A) requires a habeas
petitioner to obtain a COA to appeal an order denying a Rule
70(a) motion to enforce a conditional writ of habeas corpus,
we must decide whether such an order “pertain[s] to the
district court’s adjudication of the habeas petition.” See id.
at 819 (quoting Winkles, 795 F.3d at 1142).

                               B

    Federal Rule of Civil Procedure 70(a) provides in relevant
part:
14                        ROSE V. GUYER

         If a judgment requires a party . . . to perform
         [a] specific act and the party fails to comply
         within the time specified, the court may order
         the act to be done . . . by another person
         appointed by the court. When done, the act
         has the same effect as if done by the party.

This rule authorizes a district court to enforce its judgment
“only when a party refuses to comply with [the] judgment.”
McCabe v. Arave, 827 F.2d 634, 639 (9th Cir. 1987); see also
Westlake N. Prop. Owners Ass’n v. City of Thousand Oaks,
915 F.2d 1301, 1304 (9th Cir. 1990) (“[Rule 70] applies only
to parties who have failed to perform specific acts pursuant to
a judgment.”).

    In his Rule 70(a) motion, Rose alleged that the State
failed to comply with the district court’s Conditional Writ by
not reoffering him an equivalent plea proposal. By not
complying with the Conditional Writ, Rose argues that the
State failed to cure the constitutional violation adjudicated in
his habeas proceedings, which left him “deprived of any
remedy for his constitutional injury.” He therefore sought
enforcement of the Conditional Writ’s provision that, “[i]f the
State does not meet the deadline for reoffering the
[equivalent] plea agreement, Rose shall be immediately
released from custody.”6

   Rose maintains that, because his Rule 70(a) motion has
“nothing to do with the underlying merits” of the habeas
proceedings—“the merits of the litigation . . . have already


     6
      Respondents do not challenge Rose’s use of Rule 70(a) to seek
enforcement of the Conditional Writ. Therefore, we do not decide whether
Rose’s motion was properly brought under Rule 70(a).
                            ROSE V. GUYER                                15

been determined before Rule 70 can come into play”—he is
not required to obtain a COA to appeal the district court’s
denial. However, assuming only for the sake of argument that
this is true, a bona fide Rule 60(b) motion also has nothing to
do with the underlying merits of the habeas proceeding, but
the denial of such an order nevertheless requires a COA to
appeal. See Winkles, 795 F.3d at 1142.7 “[A] bona fide Rule
60(b) motion ‘attacks, not the substance of the federal court’s
resolution of a claim on the merits, but some defect in the
integrity of the federal habeas proceedings.’” Hall v. Haws,
861 F.3d 977, 985 (9th Cir. 2017) (quoting Crosby, 545 U.S.
at 532). In other words, a bona fide Rule 60(b) motion
challenges “a nonmerits aspect of the first federal habeas
proceeding.” Crosby, 545 U.S. at 534.

    Thus, in Winkles and Payton, we did not limit the
applicability of the COA requirement to orders touching on
the merits of a habeas petition or considering alleged defects
in the integrity of the proceedings. Instead, we used the more
inclusive rule that § 2253(c)(1)(A) requires a COA to appeal
an order that simply “pertain[s] to the district court’s
adjudication of the habeas petition,” Payton, 906 F.3d at 819
(quoting Winkles, 795 F.3d at 1142), which we contrasted
with orders that are “wholly distinct from the habeas petition”
and are therefore not subject to the COA requirement,
Winkles, 795 F.3d at 1142.



    7
      The Supreme Court in Crosby distinguished a bona fide Rule 60(b)
motion from a Rule 60(b) motion “that seeks to add a new ground for
relief” or “attacks the federal court’s previous resolution of a claim on the
merits.” 545 U.S. at 532. A Rule 60(b) motion seeking relief from
judgment on these grounds will be treated as a second or successive
habeas petition. Id. at 530–32.
16                      ROSE V. GUYER

    Unlike an order to enlarge the authority of appointed
counsel or an order modifying a protective order, an order
denying a Rule 70(a) motion to enforce a conditional writ is
not “wholly distinct from the habeas petition.” See id. A
conditional writ of habeas corpus declares that a petitioner “is
being held in custody in violation of his constitutional (or
other federal) rights,” Harvest v. Castro, 531 F.3d 737, 741
(9th Cir. 2008), but delays release of the “petitioner in order
to provide the State an opportunity to correct the
constitutional violation found by the court,” Hilton v.
Braunskill, 481 U.S. 770, 775 (1987). “When a district court
issues a conditional habeas writ, it retains jurisdiction to
determine compliance.” Jensen v. Pollard, 924 F.3d 451, 454
(7th Cir. 2019); see also Leonardo v. Crawford, 646 F.3d
1157, 1161 (9th Cir. 2011).

    If a state complies with a conditional writ, the petitioner
will not be released from detention, because the state has
cured the constitutional error and the federal court’s residual
enforcement jurisdiction ends. See, e.g., Gentry v. Deuth,
456 F.3d 687, 692 (6th Cir. 2006) (“‘If the state complies
with its order, the petitioner will not be released . . . .’ [W]hen
a state meets the terms of the habeas court’s condition, . . . the
habeas court does not retain any further jurisdiction over the
matter.” (quoting Phifer v. Warden, U.S. Penitentiary,
53 F.3d 859, 862 (7th Cir. 1995))). However, if a state “fails
to cure the constitutional error, i.e., when it fails to comply
with the order’s conditions, . . . the conditional grant of
habeas corpus requires the petitioner’s release from custody.”
Harvest, 531 F.3d at 750; see also Gentry, 456 F.3d at 692
(“[I]f the state fails to comply with [the district court’s] order,
release will occur. Ordinarily, the only task that remains for
the district court is the execution of judgment.” (quoting
Phifer, 53 F.3d at 862)).
                       ROSE V. GUYER                          17

    Upon the filing of a Rule 70(a) motion to enforce a
conditional writ, a district court must decide whether a state
has complied with the remedy designed by the district court
in the underlying habeas proceedings. See Jensen, 924 F.3d
at 454–55. This decision will in turn determine whether the
state cured the constitutional violation adjudicated in the
habeas proceedings or whether the petitioner is entitled to
immediate release from his unconstitutional detention. See
Harvest, 531 F.3d at 750; see also Gentry, 456 F.3d at 692.

     Therefore, a habeas petitioner must seek and obtain a
COA to appeal an order on a Rule 70(a) motion to enforce a
conditional writ of habeas corpus. Such an order “pertain[s]
to the district court’s adjudication of the habeas petition.” See
Payton, 906 F.3d at 819 (quoting Winkles, 795 F.3d at 1142).

                              III

     We next address whether Rose is entitled to a COA. Rose
first sought and was denied a COA in the district court.
Because Rose has failed to make the requisite showing under
28 U.S.C. § 2253(c)(2), we also deny him a COA.

    Section 2253(c)(2) provides that a COA “may issue . . .
only if the applicant has made a substantial showing of the
denial of a constitutional right.” When appealing a district
court’s procedural ruling (as is the case here), see Payton,
906 F.3d at 820, a petitioner makes “a substantial showing”
under § 2253(c)(2) by demonstrating that: (1) “jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right”; and
(2) “jurists of reason would find it debatable whether the
district court was correct in its procedural ruling,” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). This two-step inquiry
18                     ROSE V. GUYER

should also reflect the standard of review applicable to the
order on appeal. See Winkles, 795 F.3d at 1143 (“[T]he COA
test for appeal of the denial of a Rule 60(b) motion should
coincide with the standard of review the court will apply
during the appeal. Here, that standard of review is abuse of
discretion.”); see also Payton, 906 F.3d at 821 (incorporating
an abuse-of-discretion standard within the COA test for an
appeal of a Rule 60(d) motion).

     Respondents do not dispute that Rose successfully
asserted a valid constitutional claim (in the underlying habeas
petition). Thus, to obtain a COA, Rose must show that jurists
of reason would find it debatable whether the district court
abused its discretion in denying the Rule 70(a) motion to
enforce the Conditional Writ. See Madrigal v. Tellez,
848 F.3d 669, 672–73 (5th Cir. 2017) (reviewing an order on
a Rule 70 motion for abuse of discretion); see also Jensen,
924 F.3d at 454–55 (reviewing the district court’s
interpretation of its conditional writ to determine compliance
for abuse of discretion). This question requires us to take “an
initial peek at how the appeal would proceed.” Winkles,
795 F.3d at 1143. Yet, we are mindful that “[t]he COA
inquiry . . . is not coextensive with a merits analysis”; it
“should be decided without ‘full consideration of the factual
or legal bases adduced in support of the claims’” so as to
avoid “deciding an appeal without jurisdiction.” Buck v.
Davis, 137 S. Ct. 759, 773 (2017) (quoting Miller-El,
537 U.S. at 336–37).

    On the merits, Rose argues that the State failed to comply
with the Conditional Writ, because several terms in either the
reoffered plea proposal or the final plea agreement were not
“equivalent” to those contained in the original plea proposal.
                            ROSE V. GUYER                                 19

Therefore, he contends the district court abused its discretion
in denying his Rule 70(a) motion.

    To prevail on appeal, Rose must show that the district
court’s decision was “(1) illogical, (2) implausible, or
(3) without support in inferences that may be drawn from the
facts in the record,” Lambright, 698 F.3d at 817 (quoting
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)
(en banc)). Although “the ‘standard for obtaining a COA is
not a particularly exacting one,’” Carter v. Davis, 946 F.3d
489, 522 (9th Cir. 2019) (quoting Wilson v. Belleque,
554 F.3d 816, 826 (9th Cir. 2009)), after taking an initial peek
at the merits, we do not find that reasonable jurists would
debate whether the district court abused its discretion in
denying Rose’s motion.8

    Rose first argues that the specific sentencing
recommendation included in the reoffered plea proposal was
not equivalent to the original plea proposal, which provided
only that the State would be “free to argue for what it deems
is an appropriate sentence.” Although Rose concedes that the
district court was correct in finding that the State could have
recommended the same aggregate sentence under both
proposals, he asserts that the State’s decision to recommend
the maximum sentence in the reoffered plea proposal
foreclosed the possibility that the evidence and argument at
sentencing would compel a more lenient sentencing
recommendation.




    8
      Rose himself accepted the terms of the reoffered plea agreement
before the state trial court rejected it, as the state trial court was allowed
to do under the terms of the Conditional Writ.
20                    ROSE V. GUYER

    However, it is not unreasonable to conclude that the
original and reoffered plea proposals were equivalent in this
respect. Rose’s argument ignores the fact that, when the State
made its sentencing recommendation in the reoffered plea
proposal, it had already heard the evidence and arguments at
Rose’s sentencing hearing in 2004. Therefore, Rose was not
deprived of the opportunity to compel a more lenient
sentencing recommendation. But, even if he had been, the
original plea proposal never committed the State to consider
the evidence and arguments at sentencing before determining
its sentencing recommendation. Rose also provides us no
indication in the record that the State would have done so in
2003. Thus, it is beyond reasonable debate that the district
court did not abuse its discretion in finding that the two
proposals were equivalent despite the State’s specific
sentencing recommendation in the reoffered plea proposal.

     Rose next argues that a number of conditions contained
in the final plea agreement were completely missing from the
original plea proposal—namely, certain conditions of
supervision and a waiver of the right to appeal. But as the
district court explained, both proposals contemplated the
incorporation of additional terms and conditions into a final
plea agreement if Rose accepted the offer. Furthermore, Rose
identifies no term in the final plea agreement in 2016 that
would not have been present in a final plea agreement had
one been reached in 2003. Therefore, Rose’s comparison
between the final plea agreement and the original plea
proposal does not provide grounds upon which reasonable
jurists would debate whether the district court was within its
discretion in finding that the original and reoffered plea
proposals were equivalent.
                      ROSE V. GUYER                        21

    Lastly, Rose highlights that the original plea proposal
provided for a separate 10-year sentence with 5 years
suspended for Rose’s status as a PFO, see Mont. Code Ann.
§ 46-18-502, which would run consecutively with his
sentence for assault with a weapon (an offense carrying a
statutory maximum of 20 years, see Mont. Code Ann. § 45-5-
213(2)(a)). On the other hand, the reoffered plea proposal
provided for a 30-year sentence with 5 years suspended for
assault with a weapon—presumably the combination of a 20-
year maximum sentence under Mont. Code Ann. section 45-
5-213(2)(a) with (what is in effect) a 10-year sentencing
enhancement for Rose’s PFO status.

    Because “sentences imposed based on an offender’s status
as a [PFO] replace the sentence for the underlying felony”
under Montana law, State v. Gunderson, 237 P.3d 74, 84
(Mont. 2010), the district court explained that, had the State
reoffered Rose the exact same term as the original plea
proposal with respect to Rose’s PFO status, such a proposal
would have been “illegal in form.” Nevertheless, the district
court found the original and reoffered plea proposal
equivalent, finding it possible for Rose to obtain a combined
30-year sentence with 5 years suspended for assault with a
weapon and his PFO status under both proposals. Rose does
not contest the district court’s reasoning.

    In conclusion, none of Rose’s arguments demonstrate that
reasonable jurists would debate whether the district court
abused its discretion in finding that the State complied with
the Conditional Writ and thus in denying Rose’s Rule 70(a)
22                   ROSE V. GUYER

motion. Consequently, Rose has failed to make a substantial
showing under § 2253(c)(2) to permit the issuance of a COA.

   Certificate of Appealability DENIED and appeal
DISMISSED.
