     Case: 13-20226          Document: 00512965623          Page: 1    Date Filed: 03/11/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                          No. 13-20226                        United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                      FILED
UNITED STATES OF AMERICA,                                                      March 11, 2015
                                                                                Lyle W. Cayce
               Plaintiff - Appellee                                                  Clerk

v.

OLIVER NKUKU,

               Defendant - Appellant




                      Appeal from the United States District Court
                           for the Southern District of Texas
                                 USDC No. 4-13-CV-280


Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge.*
PER CURIAM:**
       Defendant Oliver Nkuku appeals the denial of his Federal Rule of Civil
Procedure 60(b) motion for reconsideration challenging the district court’s
summary dismissal of his 28 U.S.C. § 2255 motion.                       Because, under the
particular and specific facts of this case, the district court abused its discretion



       * District   Judge of the Eastern District of Texas, sitting by designation.
       **Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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by failing to grant the Rule 60(b) motion in light of its failure to comply with
the procedure governing Nkuku’s § 2255 motion, we VACATE the district
court’s judgment and REMAND for further proceedings as set forth herein.
                                 I. Background
      Oliver Nkuku, a federal prisoner, was convicted of conspiracy to commit
healthcare fraud and aiding and abetting healthcare fraud. After this court
affirmed his conviction and sentence, see United States v. Nkuku, 461 F. App’x
392 (5th Cir. 2012) (unpublished), Nkuku filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255 on four bases. He argued that: (1) trial counsel
was ineffective for terminating plea negotiations and failing to convey a plea
offer to him, (2) trial counsel failed to research the facts and law of the case,
(3) the district court violated Nkuku’s right to counsel by terminating his
counsel’s representation three weeks prior to trial, and (4) appellate counsel
was ineffective for failing to challenge on appeal the adequacy of the district
court’s reasons for the sentence and amount of the restitution award. The
district court denied relief without service of process on the government in a
summary order entered on February 13, 2013.
      On April 9, 2013, fifty-five days after the denial of his motion, Nkuku
filed a “Motion for Clarification and Reconsideration of Order Denying
Movant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody,” objecting to the district court’s
failure to provide reasons for denying § 2255 relief. Because the motion was
filed outside the 28-day window required under Federal Rule of Civil Procedure
59(e), the district court construed it as a post-judgment Rule 60(b)(6) motion
for reconsideration and denied it without explanation. While Nkuku did not
initially appeal the denial of his § 2255 motion, he moved for a certificate of
appealability (“COA”) to challenge the court’s dismissal of his § 2255 motion

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and his Rule 60(b) motion. We denied Nkuku’s petition for a COA on his § 2255
motion for failure to file his notice of appeal within the time frame mandated
by Federal Rule of Appellate Procedure 4(a)(1)(B) & 4(a)(4)(A)(v), but granted
a COA to review the district court’s denial of his Rule 60(b) motion. 1 We now
conduct that review.
                                     II. Discussion
      Before we consider the merits of Nkuku’s Rule 60(b) motion, we must
evaluate our jurisdiction to consider this appeal. Under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), a petitioner’s failure to obtain
authorization from an appellate court to file a second or successive habeas
petition is a jurisdictional bar. 28 U.S.C. § 2244(b)(3)(A); Williams v. Thaler,
602 F.3d 291, 301 (5th Cir. 2010). The Government avers that Nkuku’s Rule
60(b) motion was in fact an unauthorized successive § 2255 petition warranting
dismissal.
      In Gonzalez v. Crosby, the Supreme Court instructed that a petitioner’s
Rule 60(b) motion should be construed as a second or successive petition when
it pursues a substantive claim. 545 U.S. 524, 531–32 (2005). 2 Such claims
include motions that pursue an alternative ground for relief and those that
“attack[] the federal court’s resolution of a previous claim on the merits.” Id.
However, “‘when a 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,’ courts should not construe the motion as a



      1  We reject any attempt by Nkuku to raise new issues on appeal as we granted COA
only to the extent Nkuku challenges the denial of his Rule 60(b) motion.

      2 Although Gonzalez considered Rule 60(b) in the context of § 2254, the Fifth Circuit
has extended Gonzalez’s application to cases under § 2255. See Williams, 602 F.3d at 303–
04.
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second or successive petition.” Williams, 602 F.3d at 302 (quoting Gonzalez,
545 U.S. at 531–32). “Examples of motions attacking a defect in the integrity
of the federal habeas proceedings include a claim of fraud on the court or
challenges to a court’s procedural ruling which precluded a merits
determination, such as when a ruling is based on an alleged failure to exhaust,
a procedural default, or a time-bar determination.” United States v. Brown,
547 F. App’x 637, 641 (5th Cir. 2013) (unpublished) 3 (citing Gonzalez, 545 U.S.
at 532 nn.4–5).
       Nkuku moved for reconsideration under Rule 60(b)(6), which empowers
the court to relieve a party from a judgment or order for “any other reason that
justifies relief.” FED. R. CIV. P. 60(b)(6). The motion did not contend that the
district court erred on the merits of his claim, but instead asserted that the
district court erred by failing to articulate its rationale for the summary
dismissal of his § 2255 motion. According to Nkuku, the district court failed to
follow the procedures articulated by the Supreme Court, which held that
summary dismissal without a hearing is only appropriate where a petitioner’s
allegations, when viewed against the record, are wholly frivolous.                          See
Blackledge v. Allison, 431 U.S. 63, 76 (1977). As such, Nkuku requested relief
“so that the [district court] may make appropriate findings of fact and
conclusions of law.”
       While determining whether Nkuku’s § 2255 motion is wholly meritless
requires a glance at the substance of his claims, Nkuku’s objection is with the
process, not the substance, of his case’s disposition. See Williams, 602 F.3d at
301 (holding that a Rule 60(b) motion challenging the denial of a § 2255 motion
was not a successive habeas petition when it challenged discovery violations);


       3 Although Brown is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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Brown, 547 F. App’x at 641–42 (holding that a Rule 59(e) motion objecting to
the lack of an evidentiary hearing before the district court was not a successive
habeas petition). Because his Rule 60(b) motion did not attack the merits of
the district court’s decision, we hold that it was not a successive habeas petition
and therefore was within the district court’s jurisdiction.
      Having established our jurisdiction, we review the district court’s denial
of Nkuku’s 60(b) motion for abuse of discretion. Hernandez v. Thaler, 630 F.3d
420, 428 (5th Cir. 2011). “Generally, the denial of a Rule 60(b) motion does not
bring up the underlying judgment for review.” Harrison v. Byrd, 765 F.2d 501,
503 (5th Cir. 1985) (citation, emphasis, and internal quotation marks omitted).
However, “if in granting the earlier judgment, the district court has overlooked
and failed to consider some controlling principle of law, the district court may
abuse its discretion by failing to grant 60(b) relief, even though the losing party
had failed to apply for relief from the original judgment by timely motion for a
new trial or appeal, if the 60(b) motion is filed within the time for an
appeal . . . .” Id.; see Matter of Ta Chi Navigation (Panama) Corp. S.A. v.
United States, 728 F.2d 699, 703 (5th Cir. 1984) (“In certain unusual situations
we have allowed district courts in the context of a Rule 60(b) motion to correct
their ‘obvious errors’ of law, such as overlooking controlling statutes or case
law.”).
      Nkuku filed his Rule 60(b) motion fifty-five days after the initial
judgment, within the time for an appeal of the original judgment.                See
Harrison, 765 F.2d at 503; FED. R. APP. P. 4(a)(1)(B)(i) (notice of appeal must
be filed within 60 days after entry of the judgment when the United States is
a party). Further, he has pursued the appeal of his Rule 60(b) motion in a
timely manner. As we stated in Harrison, under these unique circumstances
we can consider whether the district court abused its discretion in denying

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Rule 60(b) relief by looking to the underlying judgment. 765 F.2d at 503. Thus,
we turn to the law governing summary dismissals of habeas petitions.
      It is a well-established principle that, in the habeas context, findings of
fact and conclusions of law “are plainly indispensable to appellate review.”
Hart v. United States, 565 F.2d 360, 362 (5th Cir. 1978). While § 2255 does not
mandate reasoned orders, § 2255(b) states that:
      Unless the motion and the files and records of the case conclusively
      show that the prisoner is entitled to no relief, the court shall cause
      notice thereof to be served upon the United States attorney, grant
      a prompt hearing thereon, determine the issues and make findings
      of fact and conclusions of law with respect thereto.
Even when a district court has concluded that a petitioner is plainly unentitled
to relief, we have required the district court to state why relief was so plainly
unwarranted. United States v. Khanna, 62 F.3d 397, 1995 WL 449715, at *2
(5th Cir. 1995) (unpublished). Otherwise, we cannot surmise whether the
petitioner is unentitled to relief for procedural or substantive reasons. Id.
Thus, when district courts have not articulated their rationales for summarily
dismissing § 2255 motions, we have vacated and remanded those decisions for
reconsideration. See e.g., id.; United States v. Edwards, 711 F.2d 633, 634 (5th
Cir. 1983).
      In this case, the district court neglected to follow the precepts explained
above. It neither provided findings of fact and conclusions of law, nor did it
articulate why Nkuku’s § 2255 motion warranted summary dismissal. As we
observed in Hart, the district court’s failure to provide a reasoned order renders
the case “insufficient for our review.” 565 F.2d at 361. Here, this error was
only compounded by the district court’s failure to articulate a reason for
denying Nkuku’s Rule 60(b) motion. Rather than insulate the district court’s



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initial decision from review, the denial of the Rule 60(b) motion without any
explanation undermines our ability to exercise appellate review.
      Where the movant appeals the district court’s errant summary dismissal
of a § 2255 motion, this court may remand for reconsideration by the district
court. See e.g., Khanna, 1995 WL 449715, at *2; Edwards, 711 F.2d at 634.
Here, however, we are reviewing the district court’s dismissal of Nkuku’s Rule
60(b) motion. In two persuasive cases, we have held that the district court’s
failure to consider arguments raised by the movant in both a § 2255 motion
and a Rule 60(b) motion warranted vacatur of the district court’s judgment and
remand. See Berry v. Roberts, 85 F.3d 625, 1996 WL 255318, at *1 (5th Cir.
1996) (unpublished); United States v. Zapata–Rosa, 12 F.3d 1098, 1993 WL
543335, at *2 (5th Cir. 1993) (unpublished).        The district court neither
addressed Nkuku’s arguments, nor provided Nkuku with the process afforded
movants under § 2255(b). See Zapata–Rosa, 12 F.3d at *2.
      Given the district court’s disposition of this case, we cannot address
whether Nkuku’s claims are plainly frivolous and should be summarily
dismissed. As we noted in Khanna, the district court’s failure to articulate the
basis for its judgment denies Nkuku “meaningful appellate review because the
appellate court has no idea why the court summarily dismissed the motion,
and must conduct guesswork to decide among the myriad of possible reasons
(e.g., procedural defects) why the defendant ‘plainly’ was not entitled to
relief.” 1995 WL 449715, at *2.     Thus, the district court’s denial of Nkuku’s
Rule 60(b) motion was an abuse of discretion, we REVERSE the order denying
Rule 60(b) relief, VACATE the underlying judgment, and REMAND for the
proceedings described above. On remand, the district court must comply fully
and specifically with 28 U.S.C. § 2255(b) and shall either specifically provide
clear and detailed reasons supported by facts and law explaining why “the files

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and records of the case conclusively show that the prisoner is entitled to no
relief” or provide the notice, hearing, and findings of fact and conclusions of
law described therein.




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