                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-6878


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MADISON DUANE MCRAE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:04-cr-00223-RJC-DCK-2; 3:08-cv-00219-RJC)


Argued:   January 28, 2015                 Decided:   July 13, 2015


Before MOTZ, GREGORY, and WYNN, Circuit Judges.


Reversed and remanded by published opinion. Judge Gregory wrote
the majority opinion, in which Judge Wynn joined.    Judge Wynn
wrote a separate concurring opinion.       Judge Motz wrote a
dissenting opinion.


ARGUED: Robert Leonard Littlehale, III, PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP, Washington, D.C., for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte,   North   Carolina,  for   Appellee.      ON   BRIEF:
William Blaise Warren, Molissa H. Farber, Diana V. Valdivia,
Nathaniel D. Cullerton, Washington, D.C., Alexandra R. Clark,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New
York, for Appellant. Anne M. Tompkins, United States Attorney,
Charlotte, North Carolina, Amy E. Ray, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
GREGORY, Circuit Judge:

      Appellant Madison Duane McRae was convicted of four drug-

related charges on September 14, 2005.                     After an unsuccessful

appeal     and    a    pro   se   attempt    to    have    his   sentence   vacated,

corrected, or set aside under 28 U.S.C. § 2255, McRae filed a

pro   se   motion       with   the   district      court    entitled    “Motion   for

Relief     from       Judgment    60(b)(1)(3)(6).”           The    district   court

dismissed the motion for lack of subject-matter jurisdiction,

finding that it constituted an impermissible successive habeas

petition rather than a proper Rule 60(b) motion.                       McRae appeals

this judgment.

      The threshold issue before us is whether we can review the

district court’s categorization of McRae’s motion without first

issuing a Certificate of Appealability (“COA”) pursuant to 28

U.S.C.     § 2253(c)(1)(B).          We     hold   that    recent    Supreme   Court

jurisprudence has made clear that § 2253(c) does not apply in

this particular situation.            Because we find that McRae’s motion

constitutes a mixed Rule 60(b)/§ 2255 motion, we remand to the

district court to afford McRae the opportunity to decide whether

to abandon his improper claim or to proceed with a successive

habeas petition.




                                            2
                                           I.

                                           A.

     In 2004, Immigration and Customs Enforcement (“ICE”) Agent

Blaine      Crum     began        investigating         McRae’s      co-defendant,

Rodney Green,      after   he     became    suspicious      of   drug     trafficking

activity.      On August 21, 2004, Agent Crum learned that Green and

McRae    had    traveled     to    Jamaica,      as   had    Green’s      connection

Andrea Spears.       Two other women, Atonia Bailey and Latia Harris,

had flown to Jamaica as well.               Although the travelers flew out

of two different airports (Green and McRae from one and Spears,

Harris, and Bailey from the other), all of their tickets had

been purchased using cash at the Columbus, Ohio airport.

     When Spears, Harris, and Bailey returned from Jamaica they

were questioned at the Charlotte Douglas International Airport

by customs agents, who seized cocaine and marijuana from Harris

and Bailey.      McRae and Green were pulled aside by customs agents

at the Memphis International Airport for secondary examinations;

Agent Crum sat in on their interviews.

     After     the   interviews,         Agent   Crum    called     the    Charlotte

airport and learned that Bailey and Harris had been transporting

controlled substances.          Bailey had also identified McRae using a

photograph.        Based   on     this   information,       Agent   Crum    arrested

McRae and Green.       He obtained a search warrant for, among other

things, the information in McRae’s cell phone, and retrieved

                                           3
McRae’s text messages, list of contacts, and record of recent

calls.       Agent Crum learned that the number labeled “Tnia” was

Bailey’s, and that McRae and Green had contacted each other just

before leaving for Jamaica.

      In February 2005, McRae was charged with four drug-related

offenses.         At    the   ensuing       trial,    Green,      Bailey,       Harris,   and

Spears testified against McRae.                     According to Green, he began

distributing cocaine to McRae in 2004 and later agreed to help

McRae import cocaine from Jamaica.                     Green testified that, after

he   and    McRae      successfully      imported      a    kilogram       of   cocaine   in

August 2004, Green and McRae arranged for Spears, Harris, and

Bailey      to    travel      to     Jamaica.         McRae       purchased      everyone’s

tickets,     and    Green     bought     1.5       kilograms      of   cocaine    while   in

Jamaica.         Green also gave McRae Ace bandages and duct tape for

strapping the cocaine onto Bailey and two smaller packages for

Harris and Spears to insert into their vaginas.

      According to Bailey, in mid-August 2004 McRae offered her

$500 to go to Jamaica and “bring something back.”                                 J.A. 182.

After initially agreeing Bailey changed her mind, but McRae said

since      they   already      had    the    tickets       they    could    still    go   to

Jamaica and “kick it.”               J.A. 183-84.       Bailey testified that when

she got out of the shower on their last morning in Jamaica her

ticket and birth certificate were missing.                         McRae told her that



                                               4
if she wanted to get home she would have to transport packages

of cocaine, which she did.

     Spears testified that she traveled to Jamaica with Green

and a woman named Cheryl Turner in January 2004 and transported

500 Ecstasy pills to the United States.           In the summer of 2004

Harris asked Spears to go back to Jamaica with Harris and Green.

Spears initially declined, but agreed when Green told her this

trip would not be like the first.         According to Spears, on their

last morning in Jamaica she got out of the shower and found a

package of drugs lying on her clothes.          After arguing with Green

she inserted the package into her vagina, but she removed it

before leaving.

     According to Harris, she traveled to Jamaica at Green’s

invitation, and when she got out of the shower on their last

morning there, a package of drugs was lying next to her clothes.

Following Green’s instructions, she inserted the package into

her vagina.

     Several law enforcement officers also testified at McRae’s

trial.    Agent Crum testified that during McRae’s interview at

the airport, McRae said that he worked in real estate and that

Green had paid for his trip to Jamaica.          Agent Crum asked McRae

if he could look through his cell phone.              He found a contact

labeled   “Tnia,”   and   asked   McRae   if   that   contact   was   Atonia

Bailey; McRae denied that it was.         At some point McRae withdrew

                                    5
his consent for Agent Crum to search the phone, and Agent Crum

did not go through the phone again until he obtained a warrant.

       ICE Agent Robert Mensinger, who assisted Agent Crum with

his investigation, testified about a conversation he had with

McRae at the airport.          According to Agent Mensinger, McRae asked

whether   he   could    do    anything   to    help   his   situation.       Agent

Mensinger asked McRae if he had been advised of his rights, to

which McRae responded, “Yeah, I know my rights.”                         J.A. 572.

Agent Mensinger did not provide McRae with an official Miranda

form, but he did advise McRae of his right to remain silent and

his right to an attorney.           As Agent Mensinger started to leave

the    room,   McRae    began    talking      about   the   trip    to    Jamaica.

According to Mensinger, McRae initially said that he had not

seen Bailey for several weeks, but later changed his story and

admitted to being with her as well as Spears, Harris, and Green

in Jamaica.     He stated that he had seen two kilograms of cocaine

in the bungalow in Jamaica, and told Agent Mensinger about how

Green had strapped the cocaine onto “the girls.”                 J.A. 574-75.

       McRae’s counsel objected to both Agent Crum’s and Agent

Mensinger’s testimony.          As Agent Crum began testifying about his

interview with Green and McRae at the airport, counsel asserted

that   there   was     no    corroborative     evidence     of   the   statements

allegedly made by McRae and no waiver-of-rights form, and moved

for voir dire.         The district court denied the motion, stating

                                         6
that counsel could accomplish his goals on cross-examination.

Similarly, counsel requested the opportunity to voir dire Agent

Mensinger.         The     court    denied       the   motion,    but     directed     the

government to lay a foundation to allow the court to determine

whether there had been a violation of rights.                        Counsel had not

moved to suppress testimony from either agent.                          Prior to jury

deliberations, the court explained its denial of counsel’s voir

dire motions in greater detail.                   It noted that McRae’s counsel

had waived the right to a suppression hearing by failing to file

a pre-trial motion to suppress, but found in the alternative

that the testimony in question “was credible, the appropriate

warnings      were    given,       and . . . any         statements       made   by     the

defendant were knowing and voluntary.”                   J.A. 655-56.

                                            B.

      After    a     three-day     trial,    on    September      14,   2005,    a    jury

convicted McRae of four drug-related charges.                       On May 25, 2006,

the district court sentenced McRae to 210 months of imprisonment

for   each    of     the   four    charges,       to    run    concurrently.          McRae

appealed, but this Court affirmed his conviction and sentence.

United States v. McRae, 235 F. App’x 968 (4th Cir. 2007) (per

curiam) (unpublished).             On May 12, 2008, McRae filed a petition

under 28 U.S.C. § 2255 to vacate, set aside, or correct his

sentence.          Among      other   things,          McRae    claimed     ineffective

assistance     of     trial    and    appellate        counsel    and     prosecutorial

                                             7
misconduct.      On July 19, 2010, without holding an evidentiary

hearing, the district court granted the government’s motion for

summary judgment.        This Court subsequently held that McRae could

not appeal absent a COA, which the Court declined to issue.

United States v. McRae, 450 F. App’x 284 (4th Cir. 2011) (per

curiam) (unpublished).

       After    filing    unsuccessful         petitions   for    rehearing     and

rehearing en banc, and a writ for certiorari, McRae filed a pro

se     motion    entitled        “Motion       for   Relief       from    Judgment

60(b)(1)(3)(6).”         His motion highlighted five alleged errors in

the district court’s § 2255 proceedings:               1) the district court,

relying on the government’s memorandum, falsely stated that the

court had not mentioned counsel’s failure to move to suppress

when denying counsel’s motions for voir dire; 2) the district

court mistakenly stated that McRae admitted to knowing Bailey;

3) the district court did not consider every statement made by

McRae in determining whether his counsel was ineffective for

failing to move to suppress; 4) the district court mistakenly

attributed      Agent    Mensinger’s       testimony   that      McRae   knew   his

rights to Agent Crum; and 5) the district court misquoted Agent

Mensinger as telling McRae an attorney would be appointed for

him if he could not afford one.                  The court dismissed McRae’s

Rule    60(b)   motion     for    lack   of     subject-matter     jurisdiction,

holding that the motion was a successive § 2255 motion for which

                                           8
he    had   failed        to    obtain     preauthorization          under      28    U.S.C.

§ 2244(b)(3),        and       declining    to     issue    a   COA.          McRae   timely

appealed,      and    this       Court     appointed       counsel       to   address     the

question “whether, in light of Reid v. Angelone, 369 F.3d 363

(4th Cir. 2004), and Gonzales v. Crosby, 545 U.S. 524 (2005),

McRae’s appeal of the district court’s dismissal of his Rule

60(b)    motion      as    an    unauthorized       successive       § 2255      motion    is

subject to the certificate of appealability requirement.”



                                             II.

       On appeal, McRae argues that the district court erred in

treating his motion as a successive habeas petition rather than

a    “mixed”   Rule       60(b)/§ 2255      motion,       and   that     this    Court    may

review the district court’s determination without first issuing

a    COA.      “[O]ur      review    is     de     novo    where     a    district      court

construes a motion as a successive § 2255 motion and dismisses

it for failure to obtain prefiling authorization from a court of

appeals.”       United States v. MacDonald, 641 F.3d 596, 609 (4th

Cir. 2011).

       Rule 60(b) allows a court to relieve a party from a final

judgment for the following reasons:

       (1) mistake, inadvertence, surprise, or excusable
       neglect; (2) newly discovered evidence that, with
       reasonable diligence, could not have been discovered
       in time to move for a new trial under Rule 59(b);
       (3) fraud (whether previously called intrinsic or

                                              9
       extrinsic), misrepresentation, or other misconduct by
       an opposing party; (4) the judgment is void; (5) the
       judgment has been satisfied, released, or discharged;
       it is based on an earlier judgment that has been
       reversed   or  otherwise   vacated;  or   applying  it
       prospectively is no longer equitable; or (6) any other
       reason that justifies relief.

Fed.     R.    Civ.   P.       60(b).           Rule     60(b)    applies       to   § 2255

proceedings,      but      only    “to          the    extent     that    [it    is]    not

inconsistent      with”    applicable           statutory       provisions   and     rules.

Rules Governing Section 2255 Cases, Rule 12, 28 U.S.C. foll.

§ 2255.       Therefore, a Rule 60(b) motion in a habeas proceeding

that attacks “the substance of the federal court’s resolution of

a claim on the merits” is not a true Rule 60(b) motion, but

rather a successive habeas petition.                     Gonzales, 545 U.S. at 531-

32.    A successive habeas petition may not be filed in district

court without preauthorization from a court of appeals under

§ 2244(b)(3)(A).           A    Rule    60(b)         motion    that   challenges      “some

defect    in   the    integrity        of   the       federal    habeas   proceedings,”

however, is a true Rule 60(b) motion, and is not subject to the

preauthorization requirement.               Id.

       Under the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Pub. L. No. 104-132, a court of appeals may not

review    “the   final     order       in   a    proceeding       under   section      2255”

unless a circuit justice or judge issues a COA.                                 28 U.S.C.




                                                10
§ 2253(c)(1)(B). 1        A judge may issue a COA “only if the applicant

has made a substantial showing of the denial of a constitutional

right.”    Id.        This standard varies slightly depending on whether

the district court denied the applicant’s habeas petition on the

merits or on procedural grounds.                    If the denial was on the

merits,    “[t]he       petitioner        must   demonstrate       that    reasonable

jurists    would       find   the    district       court’s     assessment    of     the

constitutional claims debatable or wrong.”                      Slack v. McDaniel,

529 U.S. 473, 484 (2000).            If, on the other hand, the denial was

procedural, the petitioner must show “that jurists of reason

would    find    it    debatable     whether     the   petition    states     a    valid

claim of the denial of a constitutional right and that jurists

of reason would find it debatable whether the district court was

correct in its procedural ruling.”                 Id. (emphasis added).

     In Reid v. Angelone, this Court held that the § 2253(c) COA

requirement applies to an order denying a Rule 60(b) motion in a

habeas action. 2         369 F.3d 363, 369 (4th Cir. 2004).                 The Court

reached    this       conclusion     by   examining       the   plain     language   of

§ 2253(c).        Id.    at   367.        First,    the    Court   determined      that


     1 An identical requirement applies to “the final order in a
habeas corpus proceeding [under § 2254] in which the detention
complained of arises out of process issued by a State court.”
28 U.S.C. § 2253(c)(1)(A).
     2 Reid dealt with a § 2254 proceeding, but the analysis is
applicable to § 2255 proceedings as well.



                                            11
although § 2253(c) applies only to one order in any given habeas

proceeding         (“the      final    order”),     “a   single       habeas    action       may

embrace multiple habeas ‘proceedings’ . . . .”                             Id. at 367-68.

Second, the Court found that a proceeding involving a Rule 60(b)

motion is necessarily a proceeding distinct from the one giving

rise to the underlying challenged judgment.                            Id. at 368.           And

finally,      the     Court       reasoned       that    a     Rule    60(b)        proceeding

challenging        the     judgment     in   a    habeas      proceeding       is    itself    a

“habeas corpus proceeding” for the purposes of § 2253(c).                                    Id.

at 369.      After analyzing the text of the statute, the Reid Court

also    found       that       subjecting    Rule       60(b)      motions     to     the    COA

requirement is consistent with the policy concerns underlying

the requirement.              Id. at 369-70.

       The    Reid       Court     issued    a    COA,       but    then     dismissed       the

petitioner’s Rule 60(b) motion as an improper successive habeas

petition.       Id. at 374-75.            In doing so, the Court acknowledged

the apparent incongruity of granting a COA only to hold that the

district court lacked jurisdiction.                      Id. at 374 n.7.              However,

the panel found itself to be constrained by the statutory text

of   the     COA    requirement,        which     does       not   include     an     explicit

exception for “questions of subject-matter jurisdiction.”                                   Id.,

see also Jones v. Braxton, 392 F.3d 683, 688-89 (4th Cir. 2004)

(holding      that       an    order    dismissing       a    habeas       petition     as    an



                                             12
unauthorized      successive        petition     is    subject      to   the      COA

requirement).

       Subsequent Supreme Court cases have made clear that we need

not accept this incongruity in every situation.                     Based on the

Court’s reasoning in Gonzales, 545 U.S. 524, and Harbison v.

Bell, 556 U.S. 180 (2009), we hold that the COA requirement in

§ 2253(c) allows us to review, without first issuing a COA, an

order dismissing a Rule 60(b) motion as an improper successive

habeas petition.

       In   Gonzales,   the    Supreme    Court       considered    whether    Rule

60(b) motions in habeas cases “are subject to the additional

restrictions that apply to ‘second or successive’ habeas corpus

petitions” under AEDPA.             545 U.S. at 526; see also 28 U.S.C.

§ 2244(b).     It concluded that “true” Rule 60(b) motions, motions

that    challenge   “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,”       should   not    be

treated as successive habeas petitions.                Id. at 531-33.       Central

to this holding is the principle that, in order to preserve the

“unquestionably valid role” Rule 60(b) motions play in habeas

cases, we must distinguish between true Rule 60(b) motions and

successive habeas applications.          See id. at 533-34.

       Four years later, the Supreme Court held in Harbison that a

habeas petitioner appealing the denial of a motion to enlarge

                                        13
the authority of appointed counsel need not obtain a COA.                    556

U.S.       at   183.         In   so   holding,    the     Court   noted   that

§ 2253(c)(1)(A) 3 “governs final orders that dispose of the merits

of a habeas corpus proceeding -- a proceeding challenging the

lawfulness      of     the   petitioner’s    detention.”     Id.   Because    an

order denying a motion to enlarge authority of counsel “is not

such an order,” the Court reasoned that the COA requirement did

not apply.      Id.

       In the wake of Harbison, other circuits have questioned the

continued validity of requiring a habeas petitioner to obtain a

COA before appealing a denial of a Rule 60(b) motion.                In Wilson

v. Secretary Pennsylvania Department of Corrections, the Third

Circuit noted that its precedent in Morris v. Horn, 187 F.3d 333

(3d Cir. 1999), applied the COA requirement to an appeal of a

denial of a Rule 60(b) motion, but recognized that “the vitality

of that decision is undermined somewhat by the Supreme Court’s

decision in Harbison v. Bell.”                 782 F.3d 110, 115 (3d Cir.

2015).      And in Jones v. Ryan, the Ninth Circuit cited Harbison

for the proposition that “[w]ere [the petitioner] appealing the




       3
       Like the Fifth Circuit, “[w]e find no reason why the
Harbison Court’s reasoning would not be equally applicable to
§ 2253(c)(1)(B).”  United States v. Fulton, 780 F.3d 683, 686
(5th Cir. 2015).



                                        14
denial or dismissal of a valid Rule 60(b) motion, he may have

had no need for a COA.”       733 F.3d 825, 832 n.3 (9th Cir. 2013). 4

     The     Gonzales    Court    explicitly     left     open   the   question

whether orders denying Rule 60(b) motions in habeas cases are

exempt from § 2253(c)’s COA requirement. 5          545 U.S. at 535 & n.7.

And Harbison certainly bears on that question, recognizing a

link between the need for a COA and an order’s effect on the

merits of a habeas proceeding.           For our purposes today, however,

we need not determine whether the COA requirement applies to all

orders     denying    Rule   60(b)    motions.      Our     inquiry    is    much

narrower:       whether      we   may    address    the    district     court’s

jurisdictional       categorization     of   a   Rule   60(b)    motion     as   a

successive habeas petition without first issuing a COA.




     4 At least one circuit excluded orders denying Rule 60(b)
motions from the COA requirement prior to Harbison. See Dunn v.
Cockrell, 302 F.3d 491, 492 & n.1 (5th Cir. 2002).
     5 It was this Court’s decision to issue a COA following a
denial on the merits that the Supreme Court indicated might have
been appropriate in Gonzalez.    Specifically, the Supreme Court
stated that “[m]any 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.” 545 U.S. 524,
535 (emphasis added).   Furthermore, the Gonzales Court did not
endorse Reid’s holding, but merely compared it favorably to the
“near-absolute bar” imposed by the Eleventh Circuit. See id. at
535 n.7 (noting that Reid’s application of the COA requirement
to Rule 60(b) motions is “a more plausible and effective
screening requirement” (emphasis added)).



                                        15
     Gonzales mandates that we treat true Rule 60(b) motions

differently from successive habeas petitions, and Harbison holds

that only final orders with a sufficient nexus to the merits of

a habeas petition trigger the COA requirement.                   In other words,

Gonzales reveals the importance of distinguishing between Rule

60(b) motions and successive petitions, and Harbison opens the

door for us to ensure that the district court does so properly.

While    a   denial    of   a    Rule   60(b)     motion   may   be   sufficiently

connected to the merits of the underlying habeas proceeding, a

dismissal is not.           When a district court denies a Rule 60(b)

motion on the merits, it necessarily considers the merits of the

underlying habeas petition.             Since a Rule 60(b) motion alleges

illegality     in     the   conduct     of    a   proceeding,    considering   the

merits of such a motion is, in and of itself, developing a nexus

to the actual habeas proceeding itself, and thus to the merits

of that proceeding. 6           The same cannot be said about a dismissal

of a Rule 60(b) motion on jurisdictional grounds.                      No one can

say right now whether McRae’s habeas proceeding was with merit

or without based on the district court’s dismissal.


     6 For example, in a Rule 60(b) motion addressing the merits,
if a petitioner alleged that his conviction was based on perjury
committed by a testifying witness, that would call into question
the validity of his initial sentencing.         Therefore, if a
district court denied that motion, it would have weighed the
merits of the motion, found they were lacking, and therefore
that the original habeas proceeding itself was valid.


                                             16
     A   jurisdictional    dismissal        of    a   collateral       attack    on    a

habeas   proceeding   is   so   far    removed        from    the     merits   of   the

underlying habeas petition that it cannot be said to be a “final

order[] . . .    dispos[ing]     of    the       merits      of   a   habeas    corpus

proceeding . . . challenging the lawfulness of the petitioner’s

detention.”     See Harbison, 556 U.S. at 183.                    We therefore hold

that we need not issue a COA before determining whether the

district court erred in dismissing McRae’s purported Rule 60(b)

motion as an unauthorized successive habeas petition. 7



                                      III.

     The    parties   agree     that    the       district         court   erred      in

dismissing McRae’s motion as an impermissible successive § 2255

petition.     See Appellee’s Br. 48-50; Appellant’s Reply Br. 1.

McRae argues, and the government agrees, that his first, second,



     7 The facts of the case before us do not require us to
reexamine Reid in its entirety under Harbison and Gonzales.
Rather, we recognize today an abrogation of only a small part of
Reid’s reasoning.     In that case, the lower court denied the
purported Rule 60(b) motion on the merits, and this Court raised
the jurisdictional issue sua sponte after granting a COA.     See
369 F.3d at 373-75.     The petitioner’s appeal challenged a type
of order different from the one at issue here:           an order
addressing the merits of a Rule 60(b) motion, as opposed to an
order dismissing a Rule 60(b) motion as a successive habeas
application.     Unless and until this Court concludes that
Harbison makes the COA requirement inapplicable to denials of
Rule 60(b) motions generally, Reid’s reasoning remains almost
entirely intact.



                                       17
fourth, and fifth claims are properly categorized as Rule 60(b)

claims challenging the collateral review process, whereas his

third claim is a successive attack on his conviction over which

the district court did not have jurisdiction.                          This Court has

made clear that “[w]hen [a] motion presents claims subject to

the requirements for successive applications as well as claims

cognizable under Rule 60(b), the district court should afford

the    applicant       an    opportunity      to    elect   between     deleting      the

improper        claims      or   having    the     entire   motion     treated    as    a

successive application.”              United States v. Winestock, 340 F.3d

200, 207 (4th Cir. 2003).                 McRae was not given that opportunity

here.

       The government contends, however, that we should affirm the

district court on other grounds.                    Specifically, it argues that

1) McRae’s Rule 60(b) claims were untimely, and 2) he failed to

make the requisite showing of extraordinary circumstances. 8

       Under Rule 60(c)(1), a Rule 60(b)(1), (2), or (3) motion

must       be   made   “no   more   than     a    year   after   the    entry    of    the

judgment or order or the date of the proceeding.”                        Fed. R. Civ.

P. 60(c)(1).           All four of McRae’s 60(b) claims fall into these

categories, but he filed his motion nearly 18 months after the

       8
       This showing is required only for Rule 60(b)(6) claims.
See Gonzales, 545 U.S. at 535; Aikens v. Ingram, 652 F.3d 496,
500 (4th Cir. 2011) (en banc).



                                             18
district     court    denied     his    § 2255     motion.         Therefore,        the

government argues that McRae’s motion is time-barred.                               McRae

correctly asserts, however, that this issue should be resolved

by the district court in the first instance.                      In United States

v. Blackstock, this Court declined to affirm the dismissal of a

§ 2255 petition on the alternate ground that the petition was

time-barred.       513 F.3d 128, 133 (4th Cir. 2008).                        The panel,

noting     that    “AEDPA’s    limitations        period     is    an        affirmative

defense,” held that “it would be improper . . . to affirm the

dismissal . . . on timeliness grounds” where the petitioner “has

had   no   opportunity   to    come     forward    with    evidence          that   might

justify      the   application     of    equitable     tolling          or     otherwise

establish that his claims are not time-barred.”                    Id.        Similarly,

the   Rule    60(b)   one-year     filing     deadline       is    an        affirmative

defense.      See Willis v. Jones, 329 F. App’x 7, 14 (6th Cir.

2009) (unpublished) (holding that “this Rule 60(b) time limit is

an affirmative defense, not a jurisdictional bar”). 9                        Because the

issue of timeliness was not raised below, McRae has not had an

opportunity to make a case for timely filing.                       Therefore, the

proper course of action is to remand.


      9 The court reasoned:    “The Federal Rules, in and of
themselves, do not alter the jurisdiction of the district court.
And the Supreme Court has held that similar ‘claim-processing
rules’ are not jurisdictional.”    Willis, 329 F. App’x at 14.
(internal citations omitted).


                                         19
      Similarly, the merits of McRae’s claims are best addressed

by the district court in the first instance.                         Although appellate

courts do sometimes proceed to the merits of miscategorized Rule

60(b)     motions,     see,    e.g.,        Gonzales,       545     U.S.    at     536,     the

Winestock rule counsels in favor of remand.                         340 F.3d at 208-09;

see   also    Reid,    369    F.3d    at     375       (remanding    and    “tak[ing]        no

position     on    whether     Reid    is    in    fact     entitled       to    Rule     60(b)

relief”).         At least one other Court of Appeals has taken this

approach as well.            See Cox v. Horn, 757 F.3d 113, 124 (3d Cir.

2014) (“The grant or denial of a Rule 60(b)(6) motion is an

equitable matter left, in the first instance, to the discretion

of    a   district        court.”).          And       as   McRae    points        out,     our

deferential        standard    of     review       regarding       Rule    60(b)        motions

recognizes the district court’s superior position for evaluating

the merits.        See Consol. Masonry & Fireproofing, Inc. v. Wagman

Constr.      Corp.,     383    F.2d     249,       251      (4th    Cir.        1967)     (“The

disposition of motions made under Rule[] . . . 60(b) is a matter

which lies largely within the discretion of the trial judge and

his   action      is   not    lightly       to    be    disturbed     by    an     appellate

court.”); see also Std. Oil Co. of Cal. v. United States, 429

U.S. 17, 19 (1976) (noting that “the trial court is in a much

better position to pass upon the issues presented in a motion

pursuant     to    Rule    60(b)”     (internal         quotation     marks       omitted)).



                                             20
For these reasons, the merits of McRae’s 60(b) claims are best

left to the district court on remand.



                                  IV.

     We therefore reverse the judgment of the district court and

remand for further proceedings.

                                           REVERSED AND REMANDED




                                  21
WYNN, Circuit Judge, concurring:

     Not wholly unlike the issue we confronted in Blakely v.

Wards, 738 F.3d 607, 617 (2013) (en banc), where the “nub of the

majority’s and dissent’s disagreement [was] the term dismiss,”

today, we disagree about whether dismissals and denials can be

conflated    for    purposes     of    Certificates      of     Appealability.

Fittingly   to   this    case,   in   Blakely    our   dissenting      colleague

viewed the word dismiss as having a very narrow and distinct

definition “learned in the first year of law school.”                    Id. at

626 (Motz, J., dissenting).            That narrow definition could be

overcome    neither      by   “imprecise   common      usage”    nor    by   “an

overbroad dictionary definition.”          Id.    Applying that sentiment

here, there must be a distinction between “actual dismissals”

and denials.       Id.    Otherwise, we run the risk of “improperly

restrict[ing] access to the courts.”             Id. at 624.        With great

respect to the dissenting view, I must therefore agree with the

majority opinion.




                                      22
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

     The majority holds that a habeas petitioner need not obtain

a certificate of appealability (COA) before appealing a district

court’s “order denying [his] Rule 60(b) motion as an improper

successive     habeas       petition.”         Because         this   conclusion      runs

counter to binding circuit precedent, I respectfully dissent.

     We    only   have      jurisdiction       to    consider      an    appeal     from    a

“final    order   in    a    proceeding      under”       28   U.S.C.    § 2255     if     “a

circuit    justice      or    judge”     issues       a    COA.         See    28   U.S.C.

§ 2253(c)(1).      In Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.

2004),    we   held    that    a   district         court’s     denial    of    a   habeas

petitioner’s Rule 60(b) motion constitutes such an order, and

thus we lack appellate jurisdiction to review it absent a COA.

In this case, after dismissing McRae’s Rule 60(b) motion as a

successive § 2255 petition, the district court declined to issue

a COA.     And no member of this court has issued a COA. 1                           Under

Reid, we therefore lack jurisdiction to hear McRae’s appeal and

so should dismiss it.

     The    majority        eschews   this     straightforward          application        of

our precedent.         My colleagues contend that two recent Supreme




     1 There is good reason for this.    McRae plainly fails to
qualify for a COA for he cannot make a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).



                                          23
Court cases combine to abrogate -- at least in part -- our

holding in Reid.      I cannot agree.

      First, the majority relies on Gonzalez v. Crosby, 545 U.S.

524   (2005),   which   did   not    even       involve    a   COA.      There,    the

Supreme     Court   considered      the        interplay   between      Rule     60(b)

motions and the 28 U.S.C. § 2244(b)(3) requirement that habeas

petitioners obtain authorization from a court of appeals before

filing a successive habeas petition.                  See id. at 530-36.           The

Gonzalez Court held that if a Rule 60(b) motion “attacks . . .

the integrity of the federal habeas proceedings,” rather than

the outcome of those proceedings, it is not “a habeas corpus

application” and does not require pre-filing authorization.                        Id.

at 532-33.      Thus, Gonzalez simply empowers a petitioner to file

a challenge to the integrity of his habeas proceedings in a Rule

60(b) motion without obtaining pre-filing authorization from an

appellate    court.     Gonzalez     does       not   empower    a    petitioner    to

appeal the denial of such a challenge without obtaining a COA.

The majority elides the distinction between the two forms of

authorization,      notwithstanding        their      separate       statutory     and

analytical bases.

      Whether a petitioner must first obtain a COA to appeal a

Rule 60(b) denial is, in fact, a question the Gonzalez Court

expressly declined to resolve.            Id. at 535 n.7.            But, citing our

decision in Reid, the Court acknowledged in dicta that “[m]any

                                          24
Courts of Appeals” impose such a COA requirement.                        Id. at 535.

And the Court even intimated that this approach was the correct

one.      See id. at 535 n.7 (noting COA requirement for 60(b)

appeals        is     “a   more     plausible        and    effective      screening

requirement, with sounder basis in the statute” than requiring

pre-filing          authorization    for     60(b)     motions      in    the   first

instance).          Far from undercutting Reid’s logic then, Gonzalez

actually all but endorses it.

       Accordingly, the majority’s heavy reliance on Gonzalez is

misplaced.          The majority correctly notes that Gonzalez requires

“that     we    treat      true   Rule     60(b)     motions      differently    from

successive habeas petitions.”               Indeed we must.         And a district

court that fails to do so commits error.                     But that conclusion

does not answer the question now before us, i.e., whether a

petitioner denied Rule 60(b) relief can, absent a COA, obtain

appellate       review.      Reid    held    that     we   lack    jurisdiction    to

entertain such an appeal and Gonzalez does not abrogate that

holding.

       The other case on which the majority relies, Harbison v.

Bell, 556 U.S. 180 (2009), did consider the COA provision.                        The

Harbison Court held a COA “not necessary” to appeal an order

denying a request for counsel, reasoning that the COA provision

applies only to “final orders that dispose of the merits of a

habeas corpus proceeding.”            Id. at 183.          The majority concludes

                                           25
that “[a] jurisdictional dismissal” of a Rule 60(b) motion, like

the request for counsel in Harbison, “is so far removed from the

merits of the underlying habeas petition” that it, too, does not

“dispose of the merits.”

     That conclusion is, in my view, simply wrong.                 A final

order that does not “consider[] the merits” of a habeas petition

can certainly dispose of the merits.             A Rule 60(b) motion “to

reopen proceedings” seeks to put at issue claims that have been

resolved by final judgment.           United States v. MacDonald, 641

F.3d 596, 603 (4th Cir. 2011); see also Fed. R. Civ. P. 60(b).

An   order    foreclosing    such   relief   clearly   “disposes    of    the

merits” of claims the movant sought to relitigate.                 An order

denying a request for counsel, like that at issue in Harbison,

by contrast, leaves the merits of the underlying claims entirely

unaffected.      The   majority     apparently   believes   that   only   by

“developing a nexus . . . to the merits” can an order dispose of

the merits.     Nothing in Harbison suggests that the Supreme Court

intended to alter the plain meaning of the word “dispose” in

this manner.

     Nor does anything in Harbison indicate that the Court there

intended to exempt an order dismissing a Rule 60(b) motion from

the COA requirement.        After all, a mere four years earlier, the

Court had noted in Gonzalez that “[m]any Courts of Appeals . . .

requir[e] a habeas petitioner to obtain a COA as a prerequisite

                                      26
to appealing the denial of a Rule 60(b) motion.”                545 U.S. at

535.    The Harbison Court made no reference to Rule 60(b), let

alone suggested that it intended to partially abrogate what it

had    so   recently   recognized    as    a   widespread,   “plausible   and

effective” practice.      Id. at 535 n.7.

       The majority’s assertion that it abrogates “only a small

part of Reid’s reasoning” gives me little comfort.             The majority

does limit its holding to an “order dismissing a Rule 60(b)

motion as a successive habeas application,” leaving for another

day whether an order denying a Rule 60(b) motion continues to

require a COA.     But we have never treated Rule 60(b) denials and

Rule 60(b) dismissals differently for COA purposes.               See Reid,

369 F.3d at 375 (requiring COA for all “appeals from Rule 60(b)

motions in habeas cases”).          This is, of course, because the COA

provision broadly covers “final order[s]” in habeas proceedings.

28 U.S.C. § 2253(c)(1).      A jurisdictional dismissal is no less a

“final order” than a denial on the merits.            Thus, the majority’s

purported preservation of a portion of Reid rests on decidedly

shaky ground.

       Moreover, if the majority’s assertedly “small” holding did

remain good law, it would yield a very strange result.                Under

this regime, we would still require a COA to appeal the denial

of a Rule 60(b) motion on its merits, see Reid, 369 F.3d at 369,

and to appeal the dismissal of a § 2255 motion as successive,

                                      27
see Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004).                             But

when a district court dismisses a Rule 60(b) motion as actually

a successive § 2255 motion in Rule 60(b) clothing, no COA would

be necessary.           This seems to me to make little sense.

       Though I believe neither Gonzalez nor Harbison justifies

the result reached by the majority, I am not without sympathy

for McRae.         As the Government concedes, the district court erred

in not permitting him to separate his “true” Rule 60(b) claims

from those that were successive habeas claims.                        See Appellee’s

Br. 49-50.             But the purpose of a COA is “to prevent frivolous

cases from clogging appellate dockets and to promote finality.”

United States v. Vargas, 393 F.3d 172, 174 (D.C. Cir. 2004).                          To

that       end,        Congress      has     stripped     courts     of   appeals    of

jurisdiction in habeas cases where the lack of a constitutional

injury is plain.           See Reid, 369 F.3d at 371.

       This       is    such    a    case.     Binding     circuit    precedent     thus

requires      dismissal         of    this   appeal. 2     Because    I   believe   the

Supreme       Court       has       not    overruled     that   precedent,    I     must

respectfully dissent.




       2
       The concurrence’s support of my dissent in Blakely v.
Wards, 738 F.3d 607 (2013) (en banc), is gratifying. But even
if my reasoning there applied in the very different context
here, we could not follow it given that binding circuit
precedent -- the en banc majority in Blakely -- rejected my
rationale.


                                               28
