               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


WILLIAM CHARLES PAYTON,                 No. 17-55054
           Petitioner-Appellant,
                                          D.C. No.
               v.                     2:94-cv-04779-R

RONALD DAVIS,
          Respondent-Appellee.           OPINION



     Appeal from the United States District Court
        for the Central District of California
      Manuel L. Real, District Judge, Presiding

      Argued and Submitted September 25, 2018
                Pasadena, California

               Filed October 10, 2018

    Before: Ronald M. Gould, Richard C. Tallman,
      and Johnnie B. Rawlinson, Circuit Judges.

             Opinion by Judge Tallman
2                       PAYTON V. DAVIS

                          SUMMARY *


                         Habeas Corpus

   The panel denied California state prisoner William
Charles Payton’s request for a certificate of appealability to
appeal the district court’s denial of his motion under Federal
Rule of Civil Procedure 60(d)(3), alleging fraud on the court
and seeking relief from the court’s prior order denying
habeas relief under 28 U.S.C. § 2254.

    Payton argued that the district attorney who secured his
conviction and death sentence made false sworn statements
during the federal habeas proceedings, and that these
statements were part of a larger scheme involving
assignment of inmate informants to cells next to defendants
incarcerated in Orange County, California, in hopes of
obtaining incriminating admissions.

    The panel held that Federal Rule of Civil Procedure
60(d), like Federal Rule of Civil Procedure 60(b), is subject
to the requirement in 28 U.S.C. § 2253(c)(1) for a certificate
of appealability.

    The panel held that Payton is not entitled to a certificate
of appealability because it is beyond debate that, regardless
of how the prosecution obtained the informants’ testimony
or later explained its tactics to the district court, the
informants’ testimony was not material in light of the
overwhelming evidence of Payton’s guilt.

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

                        COUNSEL

Michael Parente (argued) and Susel Carrillo-Orellana,
Deputy Federal Public Defenders; Margo Rocconi,
Supervising Deputy Federal Public Defender; Hilary
Potashner, Federal Public Defender; Office of the Federal
Public Defender, Los Angeles, California; for Petitioner-
Appellant.

A. Natasha Cortina (argued) and Holly D. Wilkens,
Supervising Deputy Attorneys General; Julie L. Garland,
Senior Assistant Attorney General; Xavier Becerra,
Attorney General of California; Office of the Attorney
General, San Diego, California; for Respondent-Appellee.


                         OPINION

TALLMAN, Circuit Judge:

    William Charles Payton requests a certificate of
appealability (“COA”) to appeal the district court’s denial of
his motion under Federal Rule of Civil Procedure 60(d)(3),
alleging fraud on the court and seeking relief from the
court’s prior order denying habeas relief under 28 U.S.C.
§ 2254. Payton argues that the district attorney who secured
his conviction and death sentence made false sworn
statements during the federal habeas proceedings, and that
these statements were part of a larger scheme involving
assignment of inmate informants to cells next to defendants
incarcerated in Orange County, California, in hopes of
obtaining incriminating admissions. Payton’s motion also
presents the threshold question—one of first impression in
our circuit—whether Rule 60(d) is subject to the COA
requirement in 28 U.S.C. § 2253(c)(1). We conclude that a
4                        PAYTON V. DAVIS

COA is required, but that Payton is not entitled to one. We
DENY his request.

                                   I

     Thirty-eight years ago, on May 26, 1980, Payton raped
Pamela Montgomery and stabbed her to death with a butcher
knife. 1 During the frenzied attack, he also attempted to kill
Patricia Pensinger and her young son. Both survived and
identified Payton as the attacker. A jury convicted him in
1981 and found the circumstances sufficient to sentence
Payton to death. Nearly forty years later, the parties are still
litigating Payton’s conviction and sentence.

                                  A

    Sometime before May 26, 1980, Payton had been a
boarder at Patricia Pensinger’s home in Garden Grove,
California. On that date, Pamela Montgomery and Patricia’s
10-year-old son, Blaine, were living in the house. But
Payton no longer resided there. At 4:00 a.m., Payton entered
the kitchen, where Patricia—unable to sleep—was working
on a crossword puzzle. Payton said he’d had car trouble.
The two chatted, and Payton drank a few beers. Pamela
Montgomery came in for a glass of water, and Patricia
introduced her to Payton. He later asked Patricia if he could



    1
       The evidence overwhelmingly pointing to Payton’s guilt and
lengthy procedural background of his numerous appeals are also set forth
in the California Supreme Court’s, this court’s, and the United States
Supreme Court’s previous opinions in this case. See, e.g., People v.
Payton, 839 P.2d 1035 (Cal. 1992); Payton v. Woodford, 258 F.3d 905
(9th Cir. 2001); Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2003) (en
banc); Brown v. Payton, 544 U.S. 133 (2005).
                      PAYTON V. DAVIS                        5

sleep on the couch, and she obliged. Patricia went to her
bedroom, where Blaine was already sleeping.

    Patricia was startled awake some time later when Payton
stabbed her in the back with a butcher knife. She rolled over
and he began to stab her in the face and neck. The vicious
attack awakened Blaine. When Blaine tried to snatch the
knife away, Payton stabbed him, too. When Payton tried to
stab Patricia in the abdomen, the knife blade bent. Payton
got off the bed and yelled he was leaving. Patricia told
Blaine to escape while she distracted Payton. She found him
in the kitchen with a second knife. Payton stabbed Patricia
repeatedly in the back and attacked Blaine as he ran through
the kitchen. When a male boarder woke up, Payton dropped
the knife and fled. Patricia suffered a total of 40 stab wounds
to her face, neck, back, and chest. Blaine incurred 23 stab
wounds to his face, neck, and back. Miraculously, both
survived.

    Pamela Montgomery was found dead on her bedroom
floor, lying in a pool of blood. Her body had 12 stab wounds,
half of which formed a line from her stomach to pubic area.
Pamela had been sexually assaulted. She also had defensive
wounds. The saliva and semen collected from her body were
consistent with Payton’s. Pamela had been dead 15 to
30 minutes before her body was found. Payton fled that
morning and was eventually arrested in Florida.

                              B

    The Orange County District Attorney charged Payton
with the rape and special circumstance murder of Pamela
Montgomery, and the attempted murders of Patricia and
Blaine Pensinger. While incarcerated in the Orange County
Jail, Payton made incriminating statements to two inmates,
Alejandro Garcia and Daniel Escalera, who reported his
6                        PAYTON V. DAVIS

admissions to law enforcement. After an evidentiary
hearing, the state trial court determined the two inmates were
not police agents.

    At the guilt phase of the trial, the prosecution offered
Patricia’s and Blaine’s eyewitness accounts. Forensic
experts testified about the bodily fluids taken from the
victim’s body, and law enforcement officers testified to the
crime scene. Payton’s wife testified that Payton had returned
home with fingernail scratches on his back and covered in
blood, some of which was still wet, including blood on his
genital area.

     Alejandro Garcia testified that Payton had confessed to
him, while the two were in jail, that he had raped and stabbed
Pamela Montgomery because he had “this urge to kill.”
Defense counsel impeached Garcia with his extensive
criminal record and previous deals with law enforcement. 2
Garcia testified that he was not offered nor did he receive
anything in exchange for his testimony against Payton. The
defense called no witnesses. The jury convicted Payton on
all counts.

    At the penalty phase, a former girlfriend of Payton’s
testified that she once awoke, after intercourse, to Payton
standing over her holding a kitchen knife to her neck, and
that he began stabbing her chest and arms. Escalera, the
other jailhouse informant, testified to his conversation
during which Payton confessed he had “severe problems
with sex and women,” that he would “stab and rape them,”

    2
      Garcia’s criminal record included felony forgery, two burglaries,
and grand theft. Garcia testified he had “cleared paper” on over 300
burglaries in exchange for probation on his most recent burglary charge.
The jury heard all of this.
                         PAYTON V. DAVIS                               7

and that every woman “was a potential victim, regardless of
age or looks.” Escalera admitted that he hoped for leniency
in exchange for testifying against Payton; he too was
impeached with his criminal record. The defense called
eight witnesses. Their testimony focused on Payton’s
religious conversion in prison. In December 1981, the
Orange County Superior Court jury returned a sentence of
death.

                                   C

    The California Supreme Court consolidated and
reviewed Payton’s automatic direct appeal and a separate
habeas petition alleging ineffective assistance of counsel.
People v. Payton, 839 P.2d 1035, 1039 (Cal. 1992). The
state high court rejected Payton’s claims related to the two
jailhouse informants, reasoning that Payton “was given full
opportunity to explore in front of the jury any motive to
cooperate or other bias on the part of all the witnesses,
including the jailhouse informant[s].”         Id. at 1040.
Moreover, “[Escalera]’s testimony formed but a small part
of the overall strong evidence against defendant” because
“the independent evidence of defendant’s crimes
corroborated the informant’s testimony.” 3 Id. at 1041, 1043.
The California Supreme Court affirmed the judgment of
conviction and death sentence and denied Payton’s habeas
petition. Id. at 1054. The United States Supreme Court



    3
       The California Supreme Court also rejected Payton’s claim that his
trial counsel had failed to raise a psychological defense related to his
combat experiences in Vietnam. Id. at 1053–54. The state high court
determined that Payton’s wartime allegations were completely
fabricated. Id. at 1052. He had in fact been discharged for heroin abuse
after 22 days, and spent no time in combat. Id.
8                         PAYTON V. DAVIS

denied certiorari.       Payton v. California, 510 U.S. 1040
(1994).

    Payton filed a second state habeas petition in 1996 that
reasserted his informant-related claims. Payton alleged that
the prosecutor engaged in misconduct by failing to disclose
that the informants were government agents. Payton
submitted evidence that deputy district attorney Michael
Jacobs was at Escalera’s change of plea hearing and met with
Escalera’s attorney during the pendency of Escalera’s 1981
robbery case. The California Supreme Court denied all of
Payton’s claims. 4

    In 1996, Payton filed a petition for a writ of habeas
corpus in federal court, where his case has remained for over
two decades. Payton alleged, among other claims, violations
related to the informants’ testimony under Brady v.
Maryland, 373 U.S. 83 (1963), and Massiah v. United States,
377 U.S. 201 (1964). The district court ultimately entered
summary judgment for the State on Payton’s informant-
related claims, but granted habeas relief on an unrelated
claim concerning the prosecutor’s improper argument about
mitigating evidence under factor (k) (“factor (k) issue”). 5
Both parties appealed.

    We reversed on the factor (k) issue. Payton v. Woodford,
258 F.3d 905, 919 (9th Cir. 2001). We also granted a COA
on Payton’s prosecutorial misconduct claims. Id. at 910. In
later rejecting those claims, we reasoned that Payton could

    4
      Payton filed a third habeas petition in the California Supreme Court
in 2013. Again, all of his collateral constitutional claims were denied.
    5
      Factor (k) is a mitigation factor the jurors were to consider under
California law, Penal Code § 190.3. See People v. Payton, 839 P.2d at
1047.
                      PAYTON V. DAVIS                          9

not show prejudice.       See, e.g., id. at 920 (“[T]he
government’s case was overwhelming,” as it “linked
[Payton] to the crimes by physical evidence and eye-witness
testimony,” and “[t]he crimes were vicious and Payton had
committed a similar attack in the past.”), 921 (“[A]ssuming
counsel should have followed-up on [information regarding
Garcia], we nevertheless see no reasonable probability that
the results would have been different.”), 922–23 (rejecting
Brady claim on the ground “that the additional, undisclosed
information was [not] material, as it would not have
undermined Garcia’s credibility any more than his
credibility was already undermined”).

    Sitting en banc, we affirmed the denial of relief as to the
guilt phase, including Payton’s informant-related claims.
Payton v. Woodford, 299 F.3d 815, 819 n.1 (9th Cir. 2002)
(en banc) (“We adopt the panel’s reasoning on the guilt
phase issues as our own.”); see also id. at 832 (Tallman, J.,
concurring in part and dissenting in part) (concurring with
the court on this ground, and noting that “not a single
member of this en banc panel believes that Payton was
prejudiced with respect to the guilt phase in light of the
overwhelming evidence against him”). However, we
reinstated the district court’s decision on the factor (k) issue.
Id. at 830. The Supreme Court then reversed and remanded
on the factor (k) issue with instructions to apply AEDPA
deference. Woodford v. Payton, 538 U.S. 975 (2003).

   Applying AEDPA on remand, we again rejected
Payton’s claims concerning the guilt phase, and affirmed
habeas relief on the factor (k) issue. Payton v. Woodford,
346 F.3d 1204, 1206–07 (9th Cir. 2003) (en banc). The
Supreme Court reversed again on the factor (k) issue,
holding that the California Supreme Court’s decision was
not objectively unreasonable under AEDPA. Brown v.
10                    PAYTON V. DAVIS

Payton, 544 U.S. 133, 147 (2005). We then remanded to the
district court to resolve “all of petitioner’s remaining claims
not already addressed on the merits.” On remand, Payton
reasserted his Brady and Massiah claims but the district
court declined to rehear them.

    We affirmed, rejecting Payton’s “procedural” claim that
the district court erred by not reconsidering its ruling on the
Brady claim. Payton v. Cullen, 658 F.3d 890, 893, 895–96
(9th Cir. 2011). We again held that there was no prejudice,
despite new evidence that Escalera had been working as a
government agent on other matters. Id. at 895 (“We do not
believe that disclosure [of the new evidence] makes it
reasonably probable that the outcome would have been
different.”).    The jury, we explained, had adequate
information regarding Escalera’s motives, and his testimony
was cumulative of other evidence. Id. at 895–96. The
judgment became final when we issued our mandate.

    Payton has now filed the instant motion in the district
court under Federal Rule of Civil Procedure 60(d)(3),
alleging fraud on the court and seeking relief from the
court’s prior order denying habeas relief. The district court
denied the motion and declined to grant a COA. Payton
timely appealed.

                              II

    We review the district court’s denial of a Rule 60(d)
motion for abuse of discretion. See Buck v. Davis, 137 S. Ct.
759, 777 (2017) (reviewing denial of Rule 60(b) motion for
abuse of discretion); Pizzuto v. Ramirez, 783 F.3d 1171,
1175 (9th Cir. 2015) (same); United States v. Estate of
Stonehill, 660 F.3d 415, 443 (9th Cir. 2011) (“In general, we
review denials of motions to vacate for abuse of
discretion.”); Superior Seafoods, Inc. v. Tyson Foods, Inc.,
                      PAYTON V. DAVIS                       11

620 F.3d 873, 878–79 (8th Cir. 2010) (reviewing denial of
Rule 60(d) motion for abuse of discretion, as it “would [not]
be appropriate to afford less deference to the considered
judgment of the presiding court in the context of a later-filed
[Rule 60(d) motion] seeking the same type of relief [as a
Rule 60(b) motion.]”). We review the district court’s factual
findings regarding Rule 60(d) motions for clear error. See
Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th
Cir. 1987) (reviewing denial of Rule 60(b) motion).

                              III

    We resolve the issues presented in this appeal as follows:
Payton must first obtain a COA before we may entertain his
appeal; but Payton is not entitled to a COA because he has
not shown he meets the requirements for one. Accordingly,
we leave undisturbed the district court order denying
Payton’s Rule 60(d) motion alleging fraud on the court.

                              A

   This case requires us to decide the threshold question
whether the COA requirement applies in the Rule 60(d)
context. We hold that it does.

                              1

    State prisoners “seeking postconviction relief under 28
U.S.C. § 2254 ha[ve] no automatic right to appeal a district
court’s denial or dismissal of the petition.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003); see also id. at 337
(“AEDPA ha[s] placed more, rather than fewer, restrictions
on the power of federal courts to grant writs of habeas corpus
12                      PAYTON V. DAVIS

to state prisoners.”). 6 Rather, habeas petitioners “must first
seek and obtain a COA.” Id. at 327; see also Ninth Circuit
Rule 22(b). The COA statute provides that “an appeal may
not be taken to the court of appeals from . . . the final order
in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court
. . . unless a circuit justice or judge issues a certificate of
appealability.” 28 U.S.C. § 2253(c)(1); see also Harbison v.
Bell, 556 U.S. 180, 183 (2009). Until a COA issues, we lack
jurisdiction to rule on the merits of a habeas petitioner’s
appeal. Miller-El, 537 U.S. at 336.

     The COA requirement serves a gatekeeping function.
The Supreme Court has explained that, by enacting
AEDPA’s COA provisions, “Congress confirmed the
necessity and the requirement of differential treatment for
those appeals deserving of attention from those that plainly
do not.” Id. at 337; cf. Barefoot v. Estelle, 463 U.S. 880, 892
(1983), superseded by 28 U.S.C. § 2253, Pub. L. 104-132,
title I, § 102, Apr. 24, 1996, 110 Stat. 1217, as recognized in
Slack v. McDaniel, 529 U.S. 473 (2000) (“Congress
established the requirement that a prisoner obtain a
certificate of probable cause to appeal in order to prevent
frivolous appeals from delaying the States’ ability to impose
sentences, including death sentences.”). 7




     6
       The parties do not dispute that AEDPA applies. Payton filed his
initial petition on May 3, 1996, after AEDPA’s effective date.

     7
       Barefoot considered a certificate of probable cause, “the
predecessor analogue to the COA under the former version of section
2253 . . . .” United States v. Winkles, 795 F.3d 1134, 1139 (9th Cir.
2015).
                         PAYTON V. DAVIS                            13

                                   2

    Payton’s motion apparently requests a COA on the issue
of whether a COA is required. But because this inquiry
necessarily precedes the question of whether a COA should
issue, we need not apply—and have not applied—the COA
standard to this threshold issue. See, e.g., Winkles, 795 F.3d
at 1139–42.

    Rule 60(d)—which covers “other” powers of the court to
grant relief from a final judgment or order—empowers
courts to “set aside a judgment for fraud on the court.” Fed.
R. Civ. P. 60(d)(3). We already require a COA to appeal the
denial of a Rule 60(b) motion. Winkles, 795 F.3d at 1142.
Because our reasoning in the Rule 60(b) context applies
equally in the Rule 60(d) context, we conclude that the COA
requirement applies here too.

    We held in Winkles that a COA is required to appeal the
denial of a Rule 60(b) motion. 8 795 F.3d at 1142. Rule
60(b) permits “the court [to] relieve a party . . . from a final
judgment, order, or proceeding” for various reasons,
including “fraud . . . misrepresentation, or misconduct by an
opposing party,” or “any other reason that justifies relief.”
Fed. R. Civ. P. 60(b)(3), (6); see also Jones v. Ryan, 733 F.3d
825, 833 (9th Cir. 2013) (“Rule 60(b) ‘allows a party to seek
relief from a final judgment, and request reopening of his

    8
      Winkles considered a motion for relief from judgment arising from
the denial of a section 2255 motion, but explained that—because
section 2255 was intended to mirror section 2254 and the language is
functionally identical—the analysis in section 2254 cases applied.
795 F.3d at 1141. Since the two separate sections of the statute afford
federal constitutional review of both state and federal convictions, the
analysis in Winkles applies here, even though Payton seeks habeas relief
under section 2254.
14                    PAYTON V. DAVIS

case, under a limited set of circumstances.’” (quoting
Gonzalez v. Crosby, 545 U.S. 524, 528 (2005))).

    In ruling that a COA was required, we distinguished
Harbison v. Bell, which concluded that a COA is not
required to appeal the district court’s denial of a motion to
expand the scope of counsel’s representation to include state
clemency proceedings.        Winkles, 795 F.3d at 1141.
Harbison explained that section 2253(c), AEDPA’s COA
provision, “governs final orders that dispose of the merits of
a habeas corpus proceeding—a proceeding challenging the
lawfulness of the petitioner’s detention.” 556 U.S. at 183.
“An order that merely denies a motion to enlarge the
authority of appointed counsel,” the Court reasoned, “is not
such an order and is therefore not subject to the COA
requirement.” Id.; see also Lambright v. Ryan, 698 F.3d 808,
817 & n.2 (9th Cir. 2012) (noting that a COA is not required
to appeal an order modifying a protective order in a habeas
proceeding).

    Winkles properly interpreted Harbison very narrowly.
“[T]he order in Harbison,” we explained, “did not pertain to
the district court’s adjudication of the habeas petition,” as it
did not, for example, “consider any alleged defects in the
integrity of the proceedings arising out of the district court’s
adjudication of the petition.” Winkles, 795 F.3d at 1142. By
contrast, a “Rule 60(b) motion in the habeas context is one
that ‘attacks some defect in the integrity of the federal habeas
proceedings.’” Id. at 1141 (quoting United States v.
Washington, 653 F.3d 1057, 1060 (9th Cir. 2011)). We thus
                           PAYTON V. DAVIS                               15

required a COA to appeal the denial of a Rule 60(b) motion. 9
Id. at 1142.

    Although we have not yet answered the “nearly
identical” question whether a COA is needed to appeal the
denial of a Rule 60(d) motion, other circuits have done so.
Torres v. United States, 833 F.3d 164, 165 (2d Cir. 2016)
(per curiam). The Second Circuit concluded that a COA is
required to appeal the denial of a Rule 60(d) motion because
“it would be inconsistent to apply the COA requirement in
the Rule 60(b) context, but not the Rule 60(d) context.” Id.
“Rule 60(b) and Rule 60(d),” our sister circuit explained,
“serve a similar purpose: to allow district courts, in
appropriate circumstances, to grant relief from a judgment
or final order.” Id.; see also Pizzuto, 783 F.3d at 1180
(“[Rule] 60(d)(3) permits courts to set aside judgments for
fraud on the court, and we have held that Rule 60(b)(6)’s
‘extraordinary circumstances’ doctrine encompasses the
same acts.”). 10


     9
       All circuits but the Fifth have reached the same conclusion, see
Winkles, 795 F.3d at 1139, and the exception in the Fifth Circuit is very
narrow, Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir.
2007) (per curiam). The Supreme Court, however, has expressly
declined to address this issue. See Gonzalez, 545 U.S. at 535 & n.7
(“Many Courts of Appeals have construed 28 U.S.C. § 2253 to impose
an additional limitation on appellate review by requiring a habeas
petitioner to obtain a COA as a prerequisite to appealing the denial of a
Rule 60(b) motion. . . . [W]e do not decide in this case whether this
construction of § 2253 is correct. . . .”); see also Buck, 137 S. Ct. at 772.

    10
       See also Gregory v. Denham, 623 F. App’x 932, 933 (10th Cir.
2015) (requiring a COA to appeal the denial of a Rule 60(d) motion);
Buck v. Thaler, 452 F. App’x 423, 429 (5th Cir. 2011) (same); United
States v. Cooper, 691 F. App’x 752 (4th Cir. 2017) (same).
16                       PAYTON V. DAVIS

    Payton offers no principled basis for distinguishing
between Rule 60(d) and Rule 60(b) for purposes of the COA
requirement. He claims that, “[w]hile Rule 60(b)(6) attacks
the correctness of the district court’s judgment, Rule
60(d)(3) challenges the integrity of the proceeding.” But this
purported distinction is belied by Winkles, which explained
that a COA is required to appeal an order “pertain[ing] to the
district court’s adjudication of the habeas petition.”
795 F.3d at 1142. That included 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.
Because Payton’s Rule 60(d) motion attacks the integrity of
the federal habeas proceedings, the reasoning in Winkles
controls. 11

    Payton also identifies procedural differences between
the sections 12 and argues that only Rule 60(d) functions to
protect the public, but he does not explain how these
distinctions warrant a disparate application of the COA
requirement. We therefore join the majority of circuits to
conclude that Rule 60(d), like Rule 60(b), is subject to the
COA requirement.




    11
       Because Payton challenges the integrity of the federal habeas
proceedings, we agree that his petition is not second or successive under
28 U.S.C. § 2244(b). See Winkles, 795 F.3d at 1141 (discussing
Gonzalez, 545 U.S. at 530–32).

     12
       For example, a Rule 60(b)(3) motion alleging fraud must be filed
within one year of the judgment, see Fed. R. Civ. P. 60(c)(1), whereas
Rule 60(d)(3) “provides no time limit on courts’ power to set aside
judgments based on a finding of fraud on the court,” Stonehill, 660 F.3d
at 443.
                     PAYTON V. DAVIS                       17

                              B

    Because Payton must obtain a COA before we can
address his Rule 60(d) motion, we next decide whether he is
entitled to one. We conclude that he is not.

                              1

    Under AEDPA, a COA “may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When the
district court dismisses on procedural grounds, as is the case
here, we apply a two-step inquiry, issuing a COA if the
petitioner shows that (1) “jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling,” and (2) “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack, 529 U.S. at 484–85;
see also Winkles, 795 F.3d at 1143. Both components must
be met before we may entertain the appeal. Slack, 529 U.S.
at 484–85.

    We are mindful that the Supreme Court has emphasized
the limited nature of this inquiry:

       The COA inquiry . . . is not coextensive with
       a merits analysis. At the COA stage, the only
       question is whether the applicant has shown
       that jurists of reason could disagree with the
       district court’s resolution of his constitutional
       claims or that jurists could conclude the
       issues presented are adequate to deserve
       encouragement to proceed further. This
       threshold question should be decided without
       full consideration of the factual or legal bases
       adduced in support of the claims. When a
18                   PAYTON V. DAVIS

       court of appeals sidesteps the COA process
       by first deciding the merits of an appeal, and
       then justifying its denial of a COA based on
       its adjudication of the actual merits, it is in
       essence deciding an appeal without
       jurisdiction.

Buck, 137 S. Ct. at 773 (citations and internal quotations
omitted). The Court therefore held that the court of appeals
erred by denying a COA on a Rule 60(b) motion by first
determining the merits, and thus “invert[ing] the statutory
order of operations.” Id. at 774; see also Tharpe v. Sellers,
138 S. Ct. 545, 546–47 (2018).

                              2

    Considering the Supreme Court’s guidance in Buck, we
nevertheless hold that Payton is not entitled to a COA.
Payton has had more than adequate opportunity to attack the
informant testimony against him and he has lost multiple
constitutional challenges to the evidence supporting his
conviction and sentence. We conclude that reasonable
jurists viewing the evidence submitted in support of Payton’s
Rule 60(d) motion could not disagree whether a COA should
issue to challenge the district court’s exercise of discretion
in denying the motion. See Slack, 529 U.S. at 484–85; cf.
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.”).

    Payton disputes the district court’s ruling that fraud on
the court cannot be based on recklessness, citing the Sixth
Circuit’s contrary holding in Johnson v. Bell, 605 F.3d 333,
339 (6th Cir. 2010). See Allen v. Ornoski, 435 F.3d 946, 951
(9th Cir. 2006) (“[A] constitutional claim is debatable if
                          PAYTON V. DAVIS                              19

another circuit has issued a conflicting ruling,” even if the
question “is well-settled in our circuit”). Also potentially
debatable is whether fraud on the court can ever arise from a
state prosecutor’s sworn statements in federal habeas
proceedings—an issue the district court resolved in the
State’s favor and which the parties dispute on appeal. See
Clark v. Astrue, 529 F.3d 1211, 1214 (9th Cir. 2008) (“The
district court abuses its discretion if it does not apply the
correct legal standard . . . .”). Beyond debate, however, is
that even if Payton could demonstrate fraud on the court,
Payton’s petition ultimately fails to state a valid claim of the
denial of a constitutional right because we have already
determined that the informants’ testimony was not material
in light of the overwhelming evidence of Payton’s guilt. 13

    The crux of Payton’s fraud on the court claim is that
Michael Jacobs, then an Orange County Deputy District
Attorney, made false sworn statements during the federal
habeas proceedings to secure summary judgment of
Payton’s Brady and Massiah claims. Payton further asserts
that Jacobs’s alleged false statements comprised part of a
greater scheme by the Orange County District Attorney’s
Office (“OCDA”) and Orange County Sherriff’s Department
(“OCSD”) to conceal and suppress evidence concerning
government informants. The new evidence Payton brought
before the district court included the Orange County
Superior Court’s rulings in the Dekraai matter 14 concluding

     13
        Thus, this is not a case like Buck, where the underlying merits of
the petitioner’s claim of ineffective assistance of counsel were debatable.
See Buck, 137 S. Ct. at 773–77.
    14
      People v. Dekraai, Orange County Superior Ct. Case No.
12ZF0128.
20                       PAYTON V. DAVIS

that the OCSD maintained and concealed a database
documenting informant-related information. Payton also
presented correspondence between the OCDA and the
California Office of the Attorney General which he asserts
shows that Jacobs—and by extension, the Attorney
General’s Office—committed Brady violations and lied
about them during the federal habeas proceedings. 15

    In order to succeed on his underlying Brady and Massiah
claims, Payton must establish prejudice. See United States
v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004) (“To establish
a Brady violation, the evidence must be . . . material or
prejudicial.”); United States v. Bagley, 641 F.2d 1235, 1238
(9th Cir. 1981) (“[T]o establish a violation of Massiah
defendant must show that he suffered prejudice at trial as a
result of evidence obtained from interrogation outside the
presence of counsel.”). As discussed above, we have already
held that the informants’ testimony was not material in this
case given the overwhelming evidence of Payton’s guilt.
See, e.g., Payton v. Cullen, 658 F.3d at 896 (“[T]here was no
reasonable doubt that Payton did have a severe problem with
women and had stabbed and raped Montgomery and stabbed
Pensinger. . . . In sum, considering the entire record, our
confidence in the outcome is not undermined.”); Payton v.
Woodford, 258 F.3d at 921 (“Nor would further



     15
        Payton also points to other new evidence: inmate Mark
Cleveland’s declaration and Jacobs’s use of informants in Thomas
Thompson’s capital case. But the Cleveland Declaration is duplicative
of information in the 2006 Escalera proffer, which this court explicitly
addressed in Payton v. Cullen, 658 F.3d at 895–96. And information
about the use of informants in a separate case sheds no light on the
materiality of the evidence presented by the informants in Payton’s case.
                          PAYTON V. DAVIS                              21

impeachment have any reasonable probability of producing
a different outcome.”). 16

    Payton’s admissions to the jailhouse informants, later
recounted to the jury, were relatively insignificant in the face
of direct eyewitness testimony from the two surviving
victims, corroborated by the forensic evidence linking his
semen and the victim’s blood, as well as Payton’s ex-
girlfriend’s penalty-stage testimony regarding the similar
attack she endured at his hands. Taking only an “initial
peek,” Winkles, 795 F.3d at 1143, as we must, we determine
that no reasonable jurist could conclude the informant
reliability and prosecutorial misconduct issues presented by
Payton in his Rule 60(d) motion are “adequate to deserve
encouragement to proceed further,” Buck, 137 S. Ct. at 773
(citation and internal quotations omitted). To the contrary,
Payton cannot prevail on those claims because—regardless
of how the prosecution obtained the informants’ testimony
or later explained its tactics to the district court—we have
already determined that the evidence itself was not material
to Payton’s conviction and sentence.




    16
       Here, our “prior decision[s] . . . [were] published . . . and became
the law of the circuit.” Barnes-Wallace v. City of San Diego, 704 F.3d
1067, 1076–77 (9th Cir. 2012); see also Gonzalez v. Arizona, 677 F.3d
383, 389 n.4 (9th Cir. 2012) (en banc) (“[O]ur general ‘law of the circuit’
rule” is “that a published decision of this court constitutes binding
authority which ‘must be followed unless and until overruled by a body
competent to do so.’” (quoting Hart v. Massanari, 266 F.3d 1155, 1170
(9th Cir. 2001))). We are therefore bound by those opinions. See Old
Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002) (“[W]e have no
discretion to depart from precedential aspects of our prior decision . . .
under the general law-of-the-circuit rule.”).
22                   PAYTON V. DAVIS

                            IV

    We conclude that a COA is required to appeal the denial
of a Rule 60(d) motion for relief from judgment arising from
the denial of a section 2254 motion. We deny Payton’s
motion for a COA, and leave undisturbed the district court’s
orders denying Payton’s Rule 60(d) motion and motion for
reconsideration.

     Certificate of Appealability DENIED.
