                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0436n.06
                             Filed: July 22, 2008

                                           No. 06-1926


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

KEVIN TYRONE WILSON,

       Petitioner-Appellant,

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                             EASTERN DISTRICT OF MICHIGAN

       Respondent-Appellee.

                                               /




BEFORE:        MERRITT, CLAY and GILMAN Circuit Judges.

       CLAY, Circuit Judge. Petitioner Kevin Tyrone Wilson filed a pro se motion, which he

styles as a motion seeking relief from a district court’s judgment pursuant to “28 U.S.C. Rule

60(B)(6).” (J.A. 11) The district court construed this motion as a motion seeking relief from

judgment pursuant to Fed. R. Civ. P. 60(b), and denied the motion on the grounds that an

unpublished, February 3, 2005 order of the Sixth Circuit had already denied identical claims to those

raised in Petitioner’s motion. Because Petitioner has not sought a certificate of appealability from

the district court, this Court lacks jurisdiction to hear the present appeal. Accordingly, we DISMISS

this appeal.
No. 06-1926
United States v. Wilson

                                          BACKGROUND

        On June 1, 1990, Petitioner was convicted of conspiring to distribute cocaine and cocaine

base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was eventually sentenced to 360 months

incarceration for this crime.

        Early in his incarceration, on December 29, 1992, Petitioner sent a letter to the district court

asking that his federal sentence run concurrently with a five and one-half year sentence that he had

previously received in Michigan state court. In a May 14, 1993 order, the district court construed

Petitioner’s letter as a habeas petition brought under 28 U.S.C. § 2255, and granted the petition.

        On April 23, 1997, Petitioner filed an additional motion in the district court, styled as a

“Motion to Vacate Conviction and/or Sentence Pursuant to 28 U.S.C. § 2255.” (J.A. 31) The

district court deemed this motion to be a second or successive habeas petition, and transferred the

motion to this Court. This Court agreed with the district court’s characterization of Petitioner’s

motion, and declined to certify Petitioner’s second or successive habeas petition.

        Between 2001 and 2003, Petitioner sought permission to file three additional habeas

petitions, and this Court denied him permission in each instance. On December 15, 2003, however,

the Supreme Court decided Castro v. United States, 540 U.S. 375 (2003), which held that “when

a court recharacterizes a pro se litigant's motion as a first § 2255 motion. . . the district court must

notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this

recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on

‘second or successive’ motions, and provide the litigant an opportunity to withdraw the motion or

to amend it so that it contains all the § 2255 claims he believes he has.” Id. at 383.

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United States v. Wilson

       This time represented by counsel, Petitioner filed yet another motion for habeas relief on

August 11, 2004. In this motion, Petitioner argued that it should be construed as a first habeas

petition because, under Castro, the district court “erred in construing Wilson’s 1992 letter as a §

2255 motion because the warnings enunciated in the Castro decision were not issued to Wilson by

the Court.” (J.A. 43) Accordingly, Petitioner requested that the district court resolve the claims

originally raised in his April 23, 1997 habeas petition, in addition to two additional claims raised for

the first time in the new motion. Castro notwithstanding, the district court construed Petitioner’s

motion as a second or successive habeas petition, and transferred the motion to this Court to allow

Petitioner to seek permission to pursue his claims.

       In an unsigned, February 3, 2005 order, this Court agreed with the district court that

Petitioner’s August 11, 2004 motion was a second or successive habeas petition, and denied

Petitioner leave to pursue his habeas claims. The order, however, made no mention of Castro, and

it is not immediately apparent from the facial language of the order whether the panel considered

Petitioner’s Castro claim before denying him leave to file a habeas petition.

       On March 4, 2005, Petitioner filed, in the district court, the pro se motion which is now

before this Court. In this motion, which Petitioner styled as a motion “for relief from judgment

pursuant to 28 U.S.C. Rule 60(B)(6),” Petitioner argues that “[i]n light of Castro, this Court erred

in construing Mr. Wilson’s 1992 letter as a § 2255 motion because the warnings enunciated in

Castro decision [sic] were not issued to Wilson by this Court.” (J.A. 15) Accordingly, the motion

asks the district court to reconsider its initial order construing Petitioner’s 1997 filing as a second

or successive habeas petition.

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United States v. Wilson

       The district court construed Petitioner’s motion as a motion seeking relief from a district

court judgment pursuant to Fed. R. Civ. P. 60(b). In denying such relief to Petitioner, the district

court noted that the arguments presented in Petitioner’s latest motion, including his argument that,

under Castro, he is entitled to have his 1992 letter reclassified as something other than a § 2255

habeas petition, were considered by the Sixth Circuit and rejected in this Court’s February 3, 2005

order. Accordingly, the district court held that so long as the February 3, 2005 order stands, a lower

court is powerless to grant the relief requested in Petitioner’s latest motion. Petitioner now appeals

that determination to this Court.

                                          DISCUSSION

                                                  I.

       As a threshold matter, it is unclear just how we should construe the motion at issue in this

appeal, and the question of how the motion is construed will necessarily impact any analysis of how

the motion should be disposed of. Petitioner styles his pro se motion as seeking “relief from

judgment pursuant to 28 U.S.C. Rule 60(B)(6),” and the district court accordingly construed the

motion as seeking relief under Fed. R. Civ. P. 60(b).

       Rule 60(b) permits a district court to “relieve a party or its legal representative from a final

judgment, order, or proceeding” for any of six reasons, including “mistake, inadvertence, surprise,

or excusable neglect” and “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1) & (6). In

his motion, Petitioner claims that the district court was “in error” when it construed his April 23,

1997 motion as a second or successive habeas petition, and requests that the district court reconsider

this decision in light of Castro. Noting that Petitioner had already raised his Castro claim in the

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No. 06-1926
United States v. Wilson

Sixth Circuit, and that we rejected that claim, the district court held that it was powerless to second

guess a decision of the Sixth Circuit, and denied Petitioner’s request. (J.A. 32–33)

       In a letter filed with this Court, the government proposes an alternative means of construing

Petitioner’s motion. According to the government’s letter, under In re: Nailor, 487 F.3d 1018 (6th

Cir. 2007), a Rule 60(b) motion filed in a habeas case must be construed as a “second or successive

§ 2255 motion in disguise.” Letter from Stephen J. Murphy, United States Attorney to United States

Court of Appeals for the Sixth Circuit of June 4, 2007, at 1. As the government concedes in its

supplemental brief, however, Nailor only applies “when a Rule 60(b) motion attacks . . . the

substance of the federal court’s resolution of a claim on the merits” 487 F.3d at 1022. When,

however, the Rule 60(b) motion alleges “some defect in the integrity of the federal habeas

proceedings,” then the motion should not be treated as a second or successive habeas petition. Id.

       In the instant case, Petitioner argues that his federal habeas proceedings are tainted because

they misconstrued his 1992 letter as a § 2255 habeas petition. Such a claim alleges a “defect in the

integrity of the federal habeas proceedings” themselves; it does not confront the merits of any of the

substantive claims raised in his habeas petitions. Accordingly, the district court properly construed

Petitioner’s motion as a Rule 60(b) motion.

                                                  II.

       Before we may consider the merits of Petitioner’s appeal from the denial of his Rule 60(b)

motion, we must first raise the issue of whether or not we have jurisdiction to hear this case. A U.S.

Court of Appeals lacks jurisdiction to hear a habeas appeal without a certificate of appealability.

United States v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007). Such a certificate of appealability may

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United States v. Wilson

issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). Moreover, although a circuit judge has authority to grant a certificate of

appealability to a habeas petitioner, a petitioner appealing the denial of a § 2255 petition must “apply

first to the district court for a certificate of appealability.” Kincade v. Sparkman, 117 F.3d 949, 953

(6th Cir. 1997). In United States v. Hardin, we held that a habeas petitioner must also obtain a

certificate of appealability before appealing the denial of a Rule 60(b) motion. 481 F.3d at 926.

       Petitioner did not apply for a certificate of appealability from the district court. Accordingly,

we lack jurisdiction to hear his appeal until Petitioner seeks a certificate of appealability from the

district court. Hardin, 481 F.3d at 926; Kincade, 117 F.3d at 953.

       In holding that we lack jurisdiction to hear this appeal, we acknowledge that such a decision

appears contrary to the language of 28 U.S.C. § 2253(c)(1). Under § 2253(c)(1), “[u]nless a circuit

justice or judge issues a certificate of appealability, an appeal may not be taken to the court of

appeals from . . . the final order in a proceeding under section 2255.” Id. The language of this

statute is facially ambiguous as to whether the word “circuit” only modifies the word “justice,” thus

leaving the word “judge” unmodified and permitting any judge to issue a certificate of appealability,

or whether the adjective “circuit” also modifies “judge,” thus reserving the power to issue certificates

of appealability to circuit judges. See Lozada v. United States, 107 F.3d 1011, 1015 (2d Cir. 1997).

What is not ambiguous, however, is that a circuit judge does have the power to issue a certificate of

appealability. Accordingly, based only on the language of § 2253(c)(1), it appears strange that this

Court has held that a petitioner appealing the denial of a § 2255 petition must “apply first to the

district court for a certificate of appealability.” Kincade, 117 F.3d at 953.

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United States v. Wilson

        Section 2253(c)(1) is not the only provision of law governing certificates of appealability,

however. Indeed, Fed. R. App. P. 22(b)(1) provides that a habeas petitioner “cannot take an appeal

unless a circuit justice or a circuit or a district judge issues a certificate of appealability under 28

U.S.C. § 2253(c).” Fed. R. App. P. 22(b)(1) (emphasis added). As the advisory committee notes

accompanying Rule 22(b)(1) make clear, the reference to “a district judge” in the language of the rule

resolves the ambiguity in § 2253(c)(1)’s statutory language in favor of allowing district judges to

issue a certificate of appealability. See Fed. R. App. P. 22 advisory committee’s note (1998

amendment); see also Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1070 (6th Cir. 1997),

overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997), (“[D]istrict courts retain the

authority to issue certificates of appealability under the AEDPA.”)

        We have also interpreted the language of Rule 22 to require habeas petitioners to seek a

certificate of appealability from a district court prior to seeking one from a circuit judge. Under Rule

22(b)(1):

        If an applicant files a notice of appeal, the district judge who rendered the judgment
        must either issue a certificate of appealability or state why a certificate should not
        issue. The district clerk must send the certificate or statement to the court of appeals
        with the notice of appeal and the file of the district court proceedings. If the district
        judge has denied the certificate, the applicant may request a circuit judge to issue the
        certificate.

Id. In Lozada v. United States, the Second Circuit explained that “Rule 22(b) specifies that the

district judge who rendered the judgment ‘shall’ either issue a COA or give reasons for denying one,

implying that the district judge is required to be the initial COA decision-maker. If the district judge

denies a COA, a request may then be made to a court of appeals. . . . [T]he amended Rule simply


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No. 06-1926
United States v. Wilson

sets forth the sequence of applications—first to the district court and then to the court of appeals.”

107 F.3d at 1017. In Kincade v. Sparkman, the Sixth Circuit adopted the Second Circuit’s holding

as its own. 117 F.3d at 953.

        To be clear, we are extremely skeptical of Lozada’s analysis, as the holding in that case

contrasts sharply with the statutory language governing certificates of appealability. Section

2253(c)(1) permits a “circuit justice or judge” to issue a certificate of appealability, strongly implying

that the power to issue such a certificate rests within the original authority of circuit judges. Nothing

in the statutory language suggests that a circuit judge’s power to issue certificates of appealability

is instead the mere power to review a district judge’s denial of such a certificate on appeal.

Moreover, we see nothing in the language of Rule 22 which compels the decision reached by the

Second Circuit in Lozada. To the contrary, Rule 22(b)(2) expressly states that a “request [for a

certificate of appealability] addressed to the court of appeals may be considered by a circuit judge

or judges, as the court prescribes.” Id. (emphasis added). Such language expressly authorizes the

judges of this Court to consider requests for a certificate of appealability; it adds no requirement that

the certificate issue only if a district court has first denied a similar request.

        Were the jurisdictional issue presented in this appeal one of first impression before the Court,

we would hold that a single circuit judge has authority to issue a certificate of appealability in the

first instance. Neither the plain language of § 2253(c)(1) nor that of Rule 22 reduces a circuit judge’s

authority to issue certificates of appealability to the mere authority to review decisions of the district

court regarding whether a certificate of appealability should issue.



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No. 06-1926
United States v. Wilson

        As much as we may as we disagree with the holdings in Lozada and Kincade, however, we

also must be cognizant that “[a] panel of this Court cannot overrule the decision of another panel.

The prior decision remains controlling authority unless an inconsistent decision of the United States

Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior

decision. ” Salmi v. Secretary of Health and Human Services, 774 F.2d 685, 689 (6th Cir. 1985);

Accordingly, because we are bound by our prior decisions requiring Petitioner to seek a certificate

of appealability in the district court before appealing his case to this Court, we conclude that we lack

jurisdiction to consider Petitioner’s appeal.

                                          CONCLUSION

        Because Petitioner failed to seek a certificate of appealability from the district court, we

hereby DISMISS this appeal for want of jurisdiction.




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United States v. Wilson

          MERRITT, Circuit Judge, concurring. In order to allow this court to make a clear ruling

on this case, I concur in Judge Clay’s opinion; and I agree with his criticism of the Kincade and

Lozada cases. When read in conjunction with the familiar rule of lenity, which we are required to

apply in criminal cases, the language of § 2253(c)(1) should not be read as a jurisdictional bar to our

consideration of this case on the merits. The language — “a circuit justice or judge” — allows a

single circuit judge to allow an appeal in a “habeas” proceeding which includes “a proceeding under

section 2255.” Our court’s previous ruling that we lack jurisdiction unless the request to appeal is

first presented to the district court that has denied the petition cannot be squared with the language

of § 2253(c)(1).

          In addition, based on the record now before us, I can find no compliance with the Castro case

by the district court, and therefore no procedural bar to deciding petitioner’s claim on the merits.

The procedural morass created in this and similar cases is just another instance of spinning our back

wheels in the mud when we could more easily shift to front wheel drive and decide the case on the

merits.




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No. 06-1926
United States v. Wilson

       RONALD LEE GILMAN, Circuit Judge, concurring in the judgment only. I write

separately because I am not prepared to criticize the Second Circuit’s decision in Lozada v. United

States, 107 F.3d 1011, 1017 (2d Cir. 1997), or this court’s binding precedent in Kincade v.

Sparkman, 117 F.3d 949, 953 (6th Cir. 1997). To the contrary, the reasoning in Lozada strikes me

as persuasive, though I would keep an open mind if and when I were ever properly presented with

the question at issue.

       But as both of my colleagues acknowledge, we lack the authority to overrule Kincade’s

holding that Rule 22 of the Federal Rules of Appellate Procedure requires a § 2255 petitioner to seek

a certificate of appealability from the district court before applying to a circuit judge. See 117 F.3d

at 953. The language in the lead opinion criticizing Kincade and Lozada is therefore dicta, and I see

no reason to engage in an extended discussion over a question of law that has been settled in this

circuit until such time as either the Supreme Court or this court sitting en banc decides otherwise.




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