                              PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 15-2


ERROL DUKE MOSES,

                Petitioner − Appellant,

           v.

CARLTON JOYNER, Warden, Central Prison,

                Respondent − Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:03-cv-00910-TDS-LPA)


Argued:   January 26, 2016                 Decided:   March 8, 2016


Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit
Judges.


Affirmed by published opinion.       Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Niemeyer joined.


ARGUED: Shelagh Rebecca Kenney, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant. Peter Andrew
Regulski, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.   ON BRIEF: Kenneth J. Rose, CENTER FOR
DEATH PENALTY LITIGATION, Durham, North Carolina, for Appellant.
Roy Cooper, Attorney General of North Carolina, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
WILKINSON, Circuit Judge:

      Appellant        Errol    Moses       challenges      the    district   court’s

denial      of   his   motion    for     relief     from    judgment      pursuant    to

Federal Rule of Civil Procedure 60(b)(6). He argues that the

court    abused     its   discretion        in    finding   that    the    motion    was

untimely under Rule 60(c). He further contends that the trial

court erred in concluding that the change in post-conviction

procedural default rules fashioned by Martinez v. Ryan, 132 S.

Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013),

did   not    constitute        the   kind    of    “extraordinary      circumstance”

needed    to     reopen   his    case.      For   the   reasons    that    follow,    we

affirm.

                                             I.

      On November 14, 1997, a North Carolina jury convicted Moses

of two counts of first-degree murder for the killings of Ricky

Griffin and Jacinto Dunkley. State v. Moses, 350 N.C. 741, 745-

50, 517 S.E.2d 853, 857-60 (1999). In the early morning hours of

November 25, 1995, Moses had visited Griffin’s house to follow

up on a drug sale and fired three shots at Griffin’s head, two

“from a range of approximately two feet or less.” Id. at 746.

Two months later, on January 27, 1996, Moses drove to Dunkley’s

home in a stolen vehicle and threatened Dunkley with a handgun,

demanding to know where Dunkley hid his money. Id. at 747-50.

When Dunkley failed to respond, Moses shot him once in the chest

                                             2
and once in the head. Id. Several days after the second murder,

while incarcerated on other charges, Moses contacted two people

in    an     attempt     to     conceal      his     murder        weapon,    which         was

nonetheless later seized by police. Id.

       Following       Moses’     capital         sentencing       hearing,        the     jury

recommended, and the trial court imposed, two death sentences.

The   state    supreme        court   affirmed       Moses’    conviction,          and     the

United     States     Supreme    Court      denied    his     petition       for    writ     of

certiorari. See State v. Moses, 350 N.C. 741, 517 S.E.2d 853

(1999),      cert.     denied,    528      U.S.    1124     (2000).       Moses     filed    a

“Motion      for     Appropriate      Relief”       (MAR)     in    the    trial         court,

alleging that he had been deprived of his Sixth Amendment right

to    effective      assistance       of   trial     and    appellate       counsel.        The

North Carolina courts rejected his claims. State v. Moses, 356

N.C. 442, 573 S.E.2d 160 (2002).

       The    procedural        trail      then     becomes    lengthy        indeed.        On

November 3, 2003, Moses filed a federal habeas petition under 28

U.S.C. § 2254 in the United States District Court for the Middle

District of North Carolina. He argued that his counsel provided

constitutionally deficient representation during the guilt and

penalty phases of trial. J.A. 370-411. Moses also asserted that

the    inadequate       performance         of     his     post-conviction           counsel

excused any procedural default of his ineffective-assistance-of-

trial-counsel claims. Id.

                                             3
      The case was assigned to a magistrate judge who recommended

that Moses’ petition be denied. J.A. 565-600. Specifically, the

recommendation         noted      that     Moses      “attempt[ed]         to    drastically

broaden,”     J.A.     591,      the     allegations        contained      in    his      MAR   by

“mov[ing] well beyond a claim of failure to present evidence to

one of a failure to investigate.” J.A. 593. The magistrate judge

concluded that the newly-raised matters were both unexhausted

and   procedurally          barred.      Hoping      to     remedy      those    infirmities

before the district court issued its order, Moses filed a second

MAR   in    the    state         trial     court.     His       motion     was      ultimately

rejected.       J.A.        622-23.       The       district       court        adopted         the

magistrate’s recommendation on October 18, 2005, and this court

affirmed. The Supreme Court denied certiorari. Moses v. Branker,

No.   06-8,     2007    WL       3083548    (4th     Cir.       Oct.    23,     2007),     cert.

denied, 554 U.S. 924 (2008).

      Moses filed yet a third MAR with the state trial court on

October    1,     2009.     He    argued    that      the       state   violated       the      Due

Process Clause of the Fourteenth Amendment when it failed to

disclose    an     immunity        agreement        with    a    witness      who    testified

against    Moses       at    trial.      Moses      also     claimed      that      the    state

knowingly refused to correct false testimony. After conducting

an evidentiary hearing, the court once again denied his motion.

Moses unsuccessfully petitioned the North Carolina Supreme Court

for review. State v. Moses, 365 N.C. 93, 706 S.E.2d 246 (2011).

                                                4
      On   September         23,        2011,        Moses       filed       a    motion        under

Rule 60(b) for relief from the district court’s October 2005

order dismissing his federal habeas petition. He raised the same

allegations      presented         in    his     third       MAR.      The       district       court

determined that the motion should be treated as a successive

habeas petition, and accordingly transferred the matter to this

court for pre-filing authorization. We denied authorization for

the successive habeas litigation. In re Moses, No. 13–1 (4th

Cir. Feb. 7, 2013).

      Meanwhile, on March 20, 2012, the Supreme Court held in

Martinez that a procedural default under state law will not bar

a federal habeas court from hearing an ineffective-assistance-

of-trial-counsel        (IATC)           claim         if        a    prisoner’s             attorney

ineffectively       failed    to        raise    the       IATC      claim       in    the    initial

state collateral proceedings. See 132 S. Ct. at 1315-20. About

fourteen months later, the Court decided Trevino, which extended

the   Martinez      exception       to     the       customary        rules       of     procedural

default to cases in which state procedure did not require a

petitioner     to    raise     an        ineffectiveness              claim           initially    on

collateral review but nonetheless made it “highly unlikely” that

a   criminal    defendant      would        have       a     meaningful          opportunity       to

raise that claim on direct appeal. See 133 S. Ct. at 1921.

      Moses    filed    a     second        motion          for      relief       from       judgment

pursuant       to     Rule         60(b)         in        the       district           court      on

                                                 5
August 19, 2014 -- nearly fifteen months after the Supreme Court

handed    down    Trevino.        Moses       argued        below,      and     maintains      on

appeal, that the change in decisional law worked by Martinez and

Trevino    represents        the       kind     of       “extraordinary         circumstance”

justifying relief from judgment under 60(b)(6). J.A. 624-32. He

asserts    that   because         the    “allegations             regarding      [his]       trial

counsel’s     failure        to        adequately           investigate         and     present

mitigating evidence . . . fall within the Martinez exception,”

his    ineffective-assistance-of-trial-counsel                          claims         are     not

procedurally      forfeited,            and     the       district      court’s        decision

dismissing his federal habeas petition should be vacated. Id.

at 629. The court below held that Moses’ motion was not only

untimely     under     Rule       60(c),        but       that     a   change     in     habeas

decisional    law,     without          more,       is     an    insufficient      basis       for

60(b)(6)    relief.        Id.   at     706-21.       We    granted     a     certificate       of

appealability, and this appeal ensued.

                                              II.

      We first address whether Moses’ Rule 60(b)(6) motion for

relief    from    judgment        on    the     basis       of    Martinez       and    Trevino

satisfies the timeliness requirement under Rule 60(c). We think

the district court acted well within its discretion in finding

the motion untimely. J.A. 722-25. Rule 60(c)(1) requires that

60(b) motions “be made within a reasonable time,” Fed. R. Civ.

P.    60(c)(1),      and    the       movant        bears       the    burden    of     showing

                                                6
timeliness. Werner v. Carbo, 731 F.2d 204, 206-07 & n.1 (4th

Cir. 1984). Moses’ 60(b) motion is predicated on a change in

habeas procedural law established in Martinez, 132 S. Ct. 1309,

and later clarified in Trevino, 133 S. Ct. 1911. The Supreme

Court decided Martinez on March 20, 2012, and Trevino on May 28,

2013.

      Nonetheless, appellant waited until August 19, 2014 to file

the 60(b) motion at issue here. J.A. 624-34. This was nearly

two-and-a-half        years    after    Martinez       and    fifteen      months   after

Trevino.       Such    a      delay     would     be     inordinate         under    any

circumstances. This delay is especially inexplicable in view of

the     fact    that    Moses     had     presented          his   claim      asserting

ineffective assistance of trial counsel in federal court and was

procedurally barred for having failed to raise it in state post-

conviction proceedings. In other words, Moses was on high alert

as to the relevance of Martinez to his case given that he had

earlier pressed in federal habeas proceedings the exact argument

eventually adopted in Martinez: that ineffectiveness of post-

conviction      counsel    constitutes         cause    for    procedural      default.

Waiting well over two years after Martinez and a year after

Trevino to bring that argument before the district court in his

60(b)    motion   understandably         struck    that       court   as    excessively

delayed under Rule 60(c).



                                           7
     What is more, Moses had filed an earlier 60(b) motion on

September 23, 2011, which was pending when Martinez came down.

Def.’s Mot., ECF No. 58. That 60(b) motion raised two issues,

that the state allowed false testimony and concealed an alleged

immunity agreement with a government witness, neither of which

related to procedural default of his ineffectiveness claim. Id.

Yet Moses never tried to amend that pending motion to allege his

trial counsel’s ineffective assistance in light of the change in

procedural default rules.

     We can hardly fault the district court for an abuse of

discretion     in   ruling   that   Moses’   delay    was   well    beyond   the

bounds of reasonableness set forth in Rule 60(c). Courts have

ruled Martinez-based 60(b) motions untimely in cases involving

shorter delays than that present here. E.g., Taylor v. Wetzel,

No. 4:CV-04-553, 2014 WL 5242076, at *8 (M.D. Pa. Oct. 15, 2014)

(filing one year and a day after Martinez untimely); Henness v.

Bagley, No. 2:01-cv-043, 2013 WL 4017643, at *11 (S.D. Ohio Aug.

6, 2013) (filing one year after Martinez untimely). In fact,

Moses refers us to no case where a delay as long as his was

deemed timely under Rule 60(c).

     Appellant claims, however, that the starting point for the

timeliness inquiry should not be Martinez v. Ryan, but rather

Fowler v. Joyner, a Fourth Circuit case decided over two years

later.   753   F.3d   446    (4th   Cir.   2014).    In   Fowler,   this   court

                                       8
addressed how North Carolina’s post-conviction procedural scheme

fit within the new Martinez-Trevino framework. Id. at 462-63.

But Moses was in no way required to await the Fowler decision

before filing a new 60(b) motion or amending his existing 60(b)

motion to assert his Martinez-based claim. The barrier facing

appellant was always the procedural default of his ineffective-

assistance-of-counsel             claim,        a     barrier        that       Martinez

specifically lifted. 132 S. Ct. at 1320. The operative date for

the timeliness inquiry is therefore Martinez and not Fowler.

       To conclude that the operative date was anything other than

Martinez      would    permit     those      filing    60(b)        motions   to    wait

indefinitely,         shifting     the     starting     point       for     determining

timeliness forward with every case that in some way related to

an     earlier   on-point        Supreme     Court    decision.        Fowler      itself

frowned on any such tactic. In fact, Fowler discussed a Fourth

Circuit    decision      that    further     clarified       Martinez,      Juniper   v.

Davis. Fowler, 753 F.3d at 461-62 (citing 737 F.3d 288 (4th Cir.

2013)). Our court treated Martinez, and not the inevitable later

elaborative decision by a lower court, as the operative change

in habeas law. See id. at 460-62. That approach is consistent

with    the   particular        emphasis    that     AEDPA    and     other     statutes

governing relief from final judgments place on changes in law by

the    Supreme    Court.    See,     e.g.,      28   U.S.C.     §    2254(e)(2)(A)(i)

(referring       to    “a   new     rule        of   constitutional         law,    made

                                            9
retroactive     to     cases   on    collateral        review    by     the     Supreme

Court”); 28 U.S.C. § 2255(h)(2) (same).

       In   reaching     our   conclusion         on   timeliness,         we   remain

sensitive to the fact that standards such as “reasonable time,”

“excusable      neglect,”      and   “good        cause   shown”        reflect       the

considerable latitude of judgment our system reposes in trial

courts. Were we to reverse the district court’s ruling here as

an abuse of discretion and accept as timely a motion filed two-

and-a-half years after the appellant knew or should have known

the basis for his 60(b) claim, the “reasonable time” limitation

in Rule 60(c)(1) would quickly lose all meaning. Movants would

be free to re-litigate matters years after their judgments had

become final and years after every subsequent change in law that

even    arguably     brought    relief.      We    decline      to    so   erode      the

“principle of finality . . . essential to the operation of our

criminal justice system” and the respect we owe to state court

judgments. Teague v. Lane, 489 U.S. 288, 309 (1989).

                                       III.

                                        A.

       Appellant’s problem with untimeliness is but the first of

many hurdles. The question remains whether he met the standard

for relief under Rule 60(b)(6). Rule 60(b) establishes grounds

for    relief   from    a   final    judgment      “under    a       limited    set    of

circumstances      including    fraud,    mistake,        and    newly     discovered

                                        10
evidence.”      Gonzalez         v.    Crosby,      545   U.S.   524,       528    (2005).    In

addition to the specific categories for relief in 60(b)(1)-(5),

60(b)(6) offers a catch-all provision that allows a court to

“relieve    a    party      or        its   legal    representative          from    a     final

judgment,      order,       or    proceeding”         for    “any     other       reason    that

justifies relief.” Fed. R. Civ. P. 60(b)(6).

       Finding himself ineligible for any of the specific grounds

for relief in 60(b)(1)-(5), Moses rests his present motion on

the open-ended language of 60(b)(6). That provision, however,

has been firmly reined in by the Supreme Court. In Gonzalez v.

Crosby, the Court addressed a situation similar to the present

case: a 60(b) motion seeking to reopen a district court judgment

dismissing a federal habeas petition as time-barred by AEDPA’s

statute of limitations. 545 U.S. 524. The movant in Gonzalez

relied on a favorable change in habeas decisional law handed

down by the Supreme Court after the district court decision. Id.

at 527 (citing Artuz v. Bennett, 531 U.S. 4 (2000)). Despite the

change in procedural law, Gonzalez made clear that 60(b)(6) is

not ordinarily available to those challenging previously denied

habeas   relief.       To    the       contrary,      a     showing    of    “extraordinary

circumstances” is required for a successful 60(b)(6) motion. 545

U.S.   at   535;   accord             Liljeberg      v.   Health      Servs.      Acquisition

Corp.,   486    U.S.     847,         864   (1988)    (quoting        Ackerman      v.   United

States, 340 U.S. 193, 199 (1950)).

                                               11
       As   the        word     “extraordinary”           suggests,        “not      every

interpretation         of     the   federal       statutes      setting     forth     the

requirements for habeas provides cause for reopening cases long

since final.” Id. at 536. Underlying the Court’s concern was the

reality that changes in the habeas statutes and in the judicial

interpretation of habeas procedural rules are relatively common.

See id. at 536-37. Each new twist and turn runs the risk of

producing a tidal wave of 60(b) motions, just as Martinez has

done throughout the lower courts. Further, the potential for

60(b) motions to “impermissibly circumvent the requirement[s]”

for securing relief under AEDPA was evident. Id. at 532. The

prospect    of    having      the    open-ended        language    of   Rule      60(b)(6)

supplant the specific habeas constraints in AEDPA, see 28 U.S.C.

§ 2254(b)-(i), led the Gonzalez Court to this conclusion: The

“extraordinary circumstances” required for relief under 60(b)(6)

would “rarely occur in the habeas context.” 545 U.S. at 535.

       In light of Gonzalez’s cabined conception of Rule 60(b)(6)

in the habeas context, Moses’ motion for relief invoking the

change in procedural default rules occasioned by Martinez falls

well    short     of    “extraordinary.”          In    fact,     Moses’    ground     for

reopening judgment under 60(b)(6) is not extraordinary for the

same reasons Gonzalez’s was not extraordinary. Moses argues that

“[t]he      intervening             change        in      law      represented         by

Martinez . . . directly overruled the decision [of the district

                                             12
court]       for    which       reconsideration          has        been    sought,”           thus

warranting relief from judgment under 60(b). J.A. 631. But that

is precisely the line of reasoning the Supreme Court rejected in

Gonzalez.      545       U.S.     at    536     (“Petitioner’s            only     ground      for

reopening the judgment denying his first federal habeas petition

is that our decision in Artuz showed the error of the District

Court’s       statute-of-limitations             ruling.”).          If    the        change     in

habeas decisional law at issue in Gonzalez cannot pass as an

extraordinary circumstance, then the change here should not fare

any better.

       Moreover, Gonzalez was hardly a groundbreaking result. We

too have held that “a change in decisional law subsequent to a

final     judgment        provides       no      basis       for     relief       under        Rule

60(b)(6).” Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993

F.2d    46,    48    (4th       Cir.    1993)        (citing       Hall    v.     Warden,       Md.

Penitentiary, 364 F.2d 495, 496 (4th Cir. 1966) (en banc)). In

Hall v. Warden, for instance, we denied the state’s 60(b) motion

after    a    Supreme      Court       ruling    undermined          our    prior       judgment

granting post-conviction relief, noting that the matter “should

not be reopened merely upon a showing of inconsistency with [the

Supreme Court] decision.” 364 F.2d at 496.

       Indeed,      the     law    on     this       issue     reflects          an    admirable

consistency,        as    the    decisions       of    other       circuits       attest.       See

Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir. 2014) (declaring

                                                13
that “the change in the decisional law effected by the Martinez

rule is not an ‘extraordinary circumstance’ sufficient to invoke

Rule 60(b)(6)”); Nash v. Hepp, 740 F.3d 1075, 1078-79 (7th Cir.

2014) (affirming the denial of petitioner’s Rule 60(b)(6) motion

since    he    presented       “the    ‘mundane’        and   ‘hardly    extraordinary’

situation in which the district court applied the governing rule

of   procedural     default       at    the    time      of   its    decision   and    the

caselaw       changed    after        judgment     became      final”);      McGuire    v.

Warden, Chillicothe Corr. Inst., 738 F.3d 741, 750-51 (6th Cir.

2013)    (holding       that    the     change     in    procedural      default   rules

worked    by      Trevino       and      Martinez        is    not      an   exceptional

circumstance justifying Rule 60(b)(6) relief because those cases

did not alter the constitutional rights of criminal defendants);

Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012) (noting that

a “change in decisional law after entry of judgment does not

constitute exceptional circumstances and is not alone grounds

for relief from a final judgment under Rule 60(b)(6)” (quoting

Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir.

1990))). Moreover, even those circuit cases referenced by Moses

are peppered with cautionary language, underscoring that “the

jurisprudential change rendered by Martinez, without more, does

not entitle a habeas petitioner to Rule 60(b)(6) relief.” Cox v.

Horn, 757 F.3d 113, 124 (3d Cir. 2014). We have no authority to

depart from the rulings of the Supreme Court or our own, and we

                                              14
see no reason to depart from the gravamen of national circuit

law.

                                           IV.

       The     requirements        of    timeliness       and       of     “extraordinary

circumstances” are not the only obstacles impeding Moses from

securing relief under Rule 60(b)(6). Martinez emphasized that a

petitioner’s      ineffective-assistance-of-trial-counsel                       claim      must

be a colorable one before post-conviction counsel can be deemed

ineffective for failing to raise it. See                        132 S. Ct. at 1318

(requiring       that      the     underlying          ineffectiveness            claim      be

“substantial”). Citing that language, the government urges us to

make    the     additional        holdings    that      Moses’       counsel       was     not

ineffective       at     trial      or   sentencing,          that        there      was     no

ineffective assistance of post-conviction counsel for failing to

raise   the     IATC     claim,    and   that     in    all   events       there     was     no

prejudice to Moses given the strength of the state’s case. We

decline, however, to reach those issues other than to note that

this case has long ago reached the point of churning procedures

without       prospect     of     practical       effect.     The        road   to    relief

stretches some distance, and Moses has faltered at the initial

steps. For the foregoing reasons, the judgment of the district

court is

                                                                                  AFFIRMED.



                                             15
