Rowe v. Director, Department of Corrections

PER CURIAM: Brian Lee Rowe, a Virginia prisoner, seeks to appeal the district court’s order dismissing his motion for reconsideration, Fed.R.Civ.P. 60(b). The district court construed Rowe’s motion as a successive 28 U.S.C. § 2254 (2000) petition. Rowe’s motion, however, alleged that the district court erred by failing to conduct an evidentiary hearing before denying Rowe’s § 2254 petition. Because this motion did not directly attack Rowe’s conviction or sentence, but rather asserted a defect in the collateral review process itself, it constituted a true Rule 60(b) motion under our decision in United States v. Winestock, 340 F.3d 200, 207 (4th Cir.), cert. denied, 540 U.S. 995, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003). To appeal an order denying a Rule 60(b) motion in a habeas action, Rowe must establish entitlement to a certificate of appealability. See Reid v. Angelone, 369 F.3d 363, 368 (4th Cir.2004). 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) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.2001). Although we disagree with the district court’s procedural ruling that Rowe’s motion was successive, the record nonetheless demonstrates that Rowe’s motion is subject to procedural bar. We previously denied a certificate of appealability and dismissed Rowe’s appeal of the denial of his habeas petition in 2001, in which Rowe suggested his case should be remanded for an evidentiary hearing. Rowe v. Director, 16 Fed.Appx. 229, No. 01-6559, 2001 WL 920571 (4th Cir.2001). Principles of res judicata, see Andrews v. Daw, 201 F.3d 521, 524 (4th Cir.2000), and law of the case, see United States v. Bell, 5 F.3d 64, 66 (4th Cir.1993), therefore bar this appeal. Moreover, Rowe’s motion, filed years after his appeal, was not filed within a reasonable time, as required by Rule 60(b). See McLawhom v. John W. Daniel & Co., 924 F.2d 535, 537-38 (4th Cir.1991). These procedural deficiencies *152 preclude granting a certificate of appealability. Accordingly, we deny a certificate of appealability, deny leave to proceed in for-ma pauperis, and dismiss the appeal. We deny Rowe’s motion for appointment of counsel. We deny Rowe’s motion for oral argument; the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED