                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-6579


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RANDALL LEE CONRAD,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:04-cr-00297-NCT-1; 1:07-cv-00313-
NCT-WWD)


Submitted:   December 21, 2016            Decided:   January 13, 2017


Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Randall Lee Conrad, Appellant Pro Se. Robert Michael Hamilton,
Angela Hewlett Miller, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Randall Lee Conrad seeks to appeal the district court’s order

accepting the recommendation of the magistrate judge and denying

his Fed. R. Civ. P. 60(d) motion for reconsideration of the

district court’s order denying relief on his 28 U.S.C. § 2255

(2012) motion.       The order is not appealable unless a circuit

justice or judge issues a certificate of appealability.            28 U.S.C.

§ 2253(c)(1)(B) (2012); United States v. McRae, 793 F.3d 392, 398

(4th Cir. 2015).        A certificate of appealability will not issue

absent “a substantial showing of the denial of a constitutional

right.”   28 U.S.C. § 2253(c)(2) (2012).           When the district court

denies relief on the merits, a prisoner satisfies this standard by

demonstrating that reasonable jurists would find that the district

court’s assessment of the constitutional claims is debatable or

wrong.     Slack   v.    McDaniel,   529    U.S.    473,   484   (2000);   see

Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).                  When the

district court denies relief on procedural grounds, the prisoner

must demonstrate both that the dispositive procedural ruling is

debatable, and that the motion states a debatable claim of the

denial of a constitutional right.          Slack, 529 U.S. at 484-85.

     We   conclude   that    a   certificate   of    appealability    is   not

warranted, as reasonable jurists would not find it debatable that




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Conrad’s claim of fraud on the court was without merit. *           First,

Conrad failed to establish that trial counsel actually engaged in

fraud.    In that regard, we agree with the district court that there

is   insufficient   evidence   to   establish   that   the   misstatements

contained in trial counsel’s affidavit are anything other than

unintentional mistakes.

      Even assuming that counsel’s misstatements were sufficient to

constitute fraud, the misstatements that Conrad complains of would

not rise to the level of fraud on the court.            Where a Rule 60

motion is premised on fraud on the court, proof of “garden-variety

fraud” is insufficient.    Fox ex rel. Fox v. Elk Run Coal Co., 739

F.3d 131, 135 (4th Cir. 2014).      Rather, relief under Rule 60(d)(3)

is only available where the fraud involves “an intentional plot to

deceive the judiciary [and] . . . touch[es] on the public interest

in a way that fraud between individual parties generally does not.”

Id. at 136.

      We have emphasized that even “perjury and fabricated evidence

. . . which [a]re reprehensible and unquestionable evils, [a]re

not adequate to permit relief as fraud on the court because the

legal system encourages and expects litigants to root them out as




      *Because Conrad does not challenge the district court’s
conclusion that any motion filed pursuant to Rule 60(b)(3) is
time-barred, he has waived review of that ruling. 4th Cir. R.
34(b).

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early as possible.” Id. (internal quotation marks omitted). Thus,

fraud on the court “is limited to situations such as bribery of a

judge or juror, or improper influence exerted on the court by an

attorney, in which the integrity of the court and its ability to

function      impartially       is   directly       impinged.”     Id.   (internal

quotation marks omitted).

      We have previously stated that “fraud upon the court includes

. . . fraud by an officer of the court, including an attorney.”

In re Genesys Data Techs., Inc., 204 F.3d 124, 130 (4th Cir. 2000).

This would, at first blush, appear to support Conrad’s position.

However, we have clarified in other cases that “[a]lthough perjury

by a witness will not suffice, the involvement of an attorney, as

an officer of the court, in a scheme to suborn perjury” constitutes

fraud on the court. Cleveland Demolition Co. v. Azcon Scrap Corp.,

a Div. of Gold Fields Am. Indus., 827 F.2d 984, 986 (4th Cir.

1987).

      Thus,    we    have    deliberately       differentiated     between    fraud

perpetrated     by   an     attorney    who    is    actively    participating   in

proceedings before a court, and fraud perpetrated by a mere witness

providing evidence to that court.              This is because fraud committed

by   an   officer    of   the    court,    actively     participating    in   court

proceedings, renders “the judicial machinery [unable to] perform

in the usual manner its impartial task of adjudging cases that are

presented for adjudication.”              Great Coastal Exp., Inc. v. Int’l

                                           4
Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 675

F.2d    1349,    1356     (4th    Cir.       1982).        Moreover,      fraud    in   those

instances “cannot necessarily expect to be exposed by the normal

adversary process.”            Id. at 1357.

       In contrast, fraud committed by a witness who happens to be

an attorney does not elevate perjury to the level of fraud on the

court because the danger that a party’s fraud would corrupt the

judicial process simply is not present. Without a concerted effort

by both a witness and opposing counsel to commit and conceal fraud,

the adversarial process is ordinarily sufficient to uncover the

fraud.     In these cases fraud by an attorney-witness does not

subvert the “public interest in a way that fraud between individual

parties generally does not” and does not rise to the level of fraud

on the court.       Fox, 739 F.3d at 136.                   Here, trial counsel acted

only as a witness when he submitted his affidavit, alleviating any

concern that the judicial process would be corrupted by any alleged

fraud.          Indeed,     Conrad       was        able     to     discover      counsel’s

misstatements,      demonstrating            that     the    proper      function   of    the

adversarial      process       was   not      impinged.           The   district    court’s

conclusion that Conrad failed to demonstrate fraud on the court

therefore was not debatable or wrong.

       Accordingly,       we     deny    a    certificate         of    appealability     and

dismiss the appeal.            We dispense with oral argument because the

facts    and    legal     contentions         are     adequately        presented   in   the

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materials   before   this   court   and   argument   would   not    aid   the

decisional process.

                                                                   DISMISSED




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