                                      UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                         No. 17-2


TIMOTHY RICHARDSON,

             Petitioner – Appellee,

v.

EDWARD THOMAS, Warden, Central Prison, Raleigh, North Carolina,

             Respondent – Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:08-hc-02163-BO)


Argued: January 23, 2018                                      Decided: February 23, 2018


Before MOTZ, TRAXLER, and KEENAN, Circuit Judges.


Dismissed and remanded by unpublished per curiam opinion.


ARGUED: Jonathan Porter Babb, Sr., NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellant. Kenneth Justin Rose, KEN ROSE,
Durham, North Carolina, for Appellee. ON BRIEF: Josh Stein, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North
Carolina, for Appellant. Stanley F. Hammer, WYATT, EARLY, HARRIS &
WHEELER, LLP, High Point, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       The State of North Carolina seeks to appeal the district court’s order granting

Timothy Richardson’s motion for relief from judgment under Federal Rule of Civil

Procedure 60(b)(6), in which he sought relief from the district court’s denial of his 28

U.S.C. § 2254 petition for habeas relief. Because this appeal is interlocutory, we are

constrained to dismiss the appeal and remand to the district court.

                                             I.

       Richardson was convicted by a jury in 1995 of kidnapping and murdering Tracy

Marie Rich. He was sentenced to death. His convictions and sentences were affirmed on

appeal, State v. Richardson, 488 S.E.2d 148 (N.C. 1997), and certiorari review was

denied, Richardson v. North Carolina, 522 U.S. 1056 (1998).            Richardson’s post-

conviction motions for appropriate relief (“MAR”) in state court were also denied. State

v. Richardson, 667 S.E.2d 272 (N.C. 2008). Among other claims, Richardson argued that

his death sentence violated the Eighth Amendment because he was mentally retarded as

defined by N.C. Gen. Stat. § 15A-2005 (2001). See Atkins v. Virginia, 536 U.S. 304, 321

(2002) (holding that the Eighth Amendment to the Constitution prohibits the execution of

a mentally retarded offender). Following an evidentiary hearing, the state court denied

relief, finding that Richardson had not demonstrated that his reduced mental capacity rose

to the level of mental retardation or that he was significantly impaired in his adaptive

functioning. See N.C. Gen. Stat. § 15A-2005.

       In 2008, Richardson filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. Richardson asserted, inter alia, that the state court’s denial of his Atkins

                                             2
claim was factually and legally unreasonable. The district court considered the evidence

presented at the state evidentiary hearing in light of Atkins and denied the claim.

Richardson v. Branker, 769 F. Supp. 2d 896, 924-28 (E.D.N.C. 2011). We affirmed and

the Supreme Court denied review. Richardson v. Branker, 668 F.3d 128, 149-53 (4th

Cir. 2012), cert. denied Richardson v. Branker, 568 U.S. 948 (2012).

                                             II.

       In May 2014, the Supreme Court issued its decision in Hall v. Florida, 134 S. Ct.

1986 (2014), in which the Court invalidated Florida’s intellectual disability statute as too

“rigid” because “[i]f, from test scores, a prisoner is deemed to have an IQ [test score]

above 70, all further exploration of intellectual disability is foreclosed.” Hall, 134 S. Ct.

at 1990. Although the statute on its face could have been interpreted in a constitutional

manner, the state supreme court had interpreted it in such a way that it “fail[ed] to take

into account the standard error of measurement [SEM]” applicable to IQ scores and

“bar[red] an essential part of a sentencing court’s inquiry into adaptive functioning.” Id.

at 2001. Thus, it “create[d] an unacceptable risk that persons with intellectual disability

w[ould] be executed.” Id. at 1990. 1

       In January 2015, Richardson filed an amendment to his MAR in state court,

asserting that his intellectual disability claim under N.C. Gen. Stat. § 15A-2005 should be

reconsidered in light of Hall. The court denied Richardson’s claim as procedurally

       1
         In Hall, the court recognized and adopted the change in terminology from
“mental retardation” to “intellectual disability” to describe the “identical phenomenon.”
Hall v. Florida, 134 S. Ct. 1986, 1990 (2014).


                                             3
barred because it had been raised in the previous MAR and Hall was not retroactively

applicable to cases on collateral review. See N.C. Gen. Stat. 15A-1419(a)(2). The state

court also denied the claim on the merits, holding that Hall did not require invalidation of

North Carolina’s statute or alter the state court’s prior factual determination that

Richardson was not intellectually disabled. Noting that Richardson had not been limited

in his presentation of evidence regarding the SEM for IQ scores, or in his presentation of

evidence of his limitations in adaptive functioning, the court held that Hall had no effect

on its prior resolution of the claim. The North Carolina Supreme Court and the United

States Supreme Court denied review. See State v. Richardson, 782 S.E.2d 736 (N.C.

2016), cert. denied Richardson v. North Carolina, 137 S. Ct. 337 (2016).

       Richardson then filed a Rule 60(b)(6) motion in the district court seeking relief

from its previous denial of his Atkins claim in the § 2254 proceedings. Richardson

asserted that Hall constituted an extraordinary circumstance that warranted setting aside

the district court’s judgment. The State opposed the motion, arguing that Richardson’s

direct attack on the court’s resolution of his Atkins claim must be construed as a

successive § 2254 habeas petition under 28 U.S.C. § 2244, which requires prior

authorization from the court of appeals.

       The district court granted Richardson’s Rule 60(b)(6) motion. Although the court

agreed that Richardson’s Rule 60(b) motion “directly attacks th[e] court’s merits

adjudication [of his intellectual disability claim] in light of Hall,” J.A. 1616, the court

ruled that “the federal habeas proceedings . . . were arguably defective because the court

did not conduct a hearing to examine” the claim, J.A. 1613.          See United States v.

                                             4
Winestock, 340 F.3d 200, 206 (4th Cir. 2003) (“While “a motion directly attacking the

prisoner’s conviction or sentence will usually amount to a successive application, . . . a

motion seeking a remedy for some defect in the collateral review process will generally

be deemed a proper motion to reconsider.”); see also Gonzalez v. Crosby, 545 U.S. 524,

532 n.4 (2005) (A movant files a true Rule 60(b) motion “when he . . . asserts that a

previous ruling which precluded a merits determination was in error.” (emphasis added)).

However, the district court stayed further proceedings “to permit [the State] to appeal” its

ruling to this court. J.A. 1616.

       [P]etitioner’s Rule 60(b) motion does not mention this court’s failure to
       conduct a hearing, but rather directly attacks this court’s merits
       adjudication in light of Hall. Thus, the question of whether Rule 60(b) is
       the appropriate vehicle for petitioner’s arguments is a close one. In this
       posture, the undersigned will STAY these proceedings to permit respondent
       to appeal. The court advises petitioner that, when these proceedings
       resume, he will be afforded an opportunity to elect between deleting any
       improper claims or having the entire motion treated as a successive
       application if appropriate.

J.A. 1616. The court additionally noted that its order should “not be construed to prevent

petitioner from filing an application in the court of appeals under 28 U.S.C. § 2244,

referencing the instant matter as a protective filing.” J.A. 1616 n.8. 2

       On April 4, 2017, the State filed a notice of appeal in this court, advising that the

district court had “stayed proceedings . . . to ‘permit respondent to appeal [the Rule

       2
         By that time, Richardson’s counsel had advised the district court of their view
that the claim of intellectual disability under Hall could not be raised in a second or
successive petition, due to the restrictions in 28 U.S.C. § 2244(b)(1). Id. (“A claim
presented in a second or successive habeas corpus application under section 2254 that
was presented in a prior application shall be dismissed.”).


                                              5
60(b)(6)] ruling.’” J.A. 1618. On July 6, the State filed its brief and the joint appendix,

consisting of five volumes and over 1400 pages. Eight days later, Richardson moved to

dismiss the State’s appeal for lack of jurisdiction because the State had not timely sought

permission to appeal under 28 U.S.C. § 1292(b) and Rule 5 of the Federal Rules of

Appellate Procedure. In response, the State asserted that the district court’s order was

appealable under the collateral order doctrine. In the alternative, the State asked us to

construe its notice of appeal as sufficient to request permission to appeal. We deferred

action on the motion pending completion of briefing. On October 5, Richardson filed his

brief, as well as a motion pursuant to 28 U.S.C. § 2244 for an order authorizing the

district court to consider a second or successive petition based upon Hall. In re Timothy

Richardson, No. 17-7 (4th Cir. filed Oct. 5, 2017). We granted Richardson’s request to

stay action on the § 2244 motion pending resolution of this appeal.

                                           III.

       There is no dispute that the district court proceedings in this case were not

concluded by the district court’s decision. The district court ruled that its failure to

conduct an evidentiary hearing was a defect in the § 2254 collateral review proceedings

that warranted Rule 60(b)(6) relief and that a hearing would be scheduled after appellate

proceedings were concluded. 3 Instead, the State asserts that the district court’s decision

should be considered final and appealable under the collateral order doctrine.


       3
        The district court did not address the question, which the parties have briefed on
appeal, of whether an evidentiary hearing is appropriate under the principles set forth in
Cullen v. Pinholster, 563 U.S. 170 (2011).


                                            6
      To proceed under the collateral order doctrine, the district court decision must

satisfy three conditions. It must “[1] conclusively determine the disputed question, [2]

resolve an important issue completely separate from the merits of the action, and [3] be

effectively unreviewable on appeal from a final judgment.” Will v. Hallock, 546 U.S.

345, 349 (2006) (internal quotation marks omitted). The State contends that all three

requirements are satisfied. We disagree. The district court conclusively determined the

disputed question of whether Richardson can proceed under Rule 60(b)(6), based upon its

failure to conduct an evidentiary hearing, or whether he can only proceed under 28

U.S.C. § 2244, and the issues raised by this appeal are important ones that are separate

from the merits of the intellectual disability claim. Nevertheless, the decision is not

effectively unreviewable on appeal. Although we understand the State’s concern for

finality of its convictions, these issues can be timely raised on appeal from a final

judgment.

      Thus, we turn to the question of whether we can grant a permissive appeal under

28 U.S.C. § 1292(b), which provides as follows:

      When a district judge, in making in a civil action an order not otherwise
      appealable under this section, shall be of the opinion that such order
      involves a controlling question of law as to which there is substantial
      ground for difference of opinion and that an immediate appeal from the
      order may materially advance the ultimate termination of the litigation, he
      shall so state in writing in such order. The Court of Appeals which would
      have jurisdiction of an appeal of such action may thereupon, in its
      discretion, permit an appeal to be taken from such order, if application is
      made to it within ten days after the entry of the order. Provided, however,
      That application for an appeal hereunder shall not stay proceedings in the
      district court unless the district judge or the Court of Appeals or a judge
      thereof shall so order.


                                           7
Id. (third emphasis in original). 4

       The requirements of 28 U.S.C. § 1292(b) “must be strictly construed.” United

States ex rel. Michaels v. Agape Senior Cmty. Inc., 848 F.3d 330, 340 (4th Cir. 2017)

(internal quotation marks omitted). The statute mandates two “conditions precedent to

the granting by this court of permission to appeal.” Milbert v. Bison Labs., Inc., 260 F.2d

431, 435 (3d Cir. 1958). First, the district court “shall have stated in writing . . . that in

his opinion ‘such order involves a controlling question of law as to which there is

substantial ground for difference of opinion and that an immediate appeal from the order

may materially advance the ultimate termination of the litigation.’” Id. (quoting 28

U.S.C. § 1292(b)). Second, “the application for permission to appeal must be made to the

court of appeals ‘within ten days after the entry of the order’ sought to be appealed

from.” Id. Only then can this court, “in its discretion, permit an appeal to be taken.” 28

U.S.C. § 1292(b).

       Here, the district court found that the question of “whether Rule 60(b) is the

appropriate vehicle” for Richardson’s claim was “a close one” and stayed the proceedings

to permit the State to appeal. However, the district court did not sufficiently certify the

appeal under 28 U.S.C. § 1292(b) and, even if it had, the State did not request permission

to appeal the decision within 10 days of the decision.


       4
          Rule 5 of the Federal Rules of Appellate Procedure sets forth the specific
requirements for the petition for permission to appeal under § 1292, including the
required contents of the petition and a provision allowing the opposing party ten days to
file an answer in opposition or a cross-petition.


                                              8
       Accordingly, while we agree with the district court that judicial economy weighs

in favor of immediate judicial review, we are constrained to dismiss the appeal insofar as

it is based upon the collateral order doctrine. We remand the matter to allow the district

court, in its discretion, to “amend its order, either on its own or in response to a party’s

motion, to include the required permission or statement” for a permissive appeal. Fed. R.

App. P. 5(a)(3). In the event the district court certifies the case to us and the State timely

requests permission to appeal, Richardson will have his opportunity to file a response.

Fed. R. App. P. 5(b)(2). 5 However, in light of the extensive filings that have already

occurred in this appeal, the court will entertain a motion by the parties to adopt the

memoranda, briefs and joint appendix from this appeal. 6

                                                          DISMISSED AND REMANDED




       5
        For these reasons, we need not address Richardson’s claim that this case is not an
appropriate one for recertification by the district court. See, e.g., Safety-Kleen, Inc.
(Pinewood) v. Wyche, 274 F.3d 846, 866-67 (4th Cir. 2001).
       6
         As noted above, Richardson’s pending motion for second or successive relief
under § 2244 is also based upon the Supreme Court’s decision in Hall, and it is
necessarily intertwined with the issues that the State sought to raise in this appeal. In re
Timothy Richardson, No. 17-7 (4th Cir. filed Oct. 5, 2017). Accordingly, we will
continue to hold this motion in abeyance for a minimum of 30 days and direct the parties
to provide an update on the district court proceedings at the expiration of this period.


                                              9
