United States Court of Appeals 

for the Fifth Circuit 

No. 21-30032 

United States of America, 

Plaintiff—Appellee, 

versus

Clyde J. Pontefract, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Western District of Louisiana 

No. 2:08-CR-69-1 

Before Smith, Higginson, and Willett, Circuit Judges.

Per Curiam:*

Clyde Pontefract, federal prisoner #13955-035, seeks a certificate of 

appealability (“COA”) to appeal the denial of his motion to modify his 

sentence and the denial of his Federal Rule of Civil Procedure 60(b) motion 

for relief from judgment. The district court determined that the Rule 60(b) 

motion sought reconsideration of its order transferring Pontefract’s second 

*

 Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances 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 Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

October 12, 2021 

Lyle W. Cayce 

Clerk 

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28 U.S.C. § 2255 motion to this court as an unauthorized successive § 2255 

motion. 

In his COA motion, Pontefract contends that the district court erred 

in failing to consider the merits of his Rule 60(b) motion, which he argues 

was a true Rule 60(b) motion alleging both fraud on the court during his plea 

and sentencing proceedings and extraordinary circumstances; he contends 

that Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 

(2013), applied to that motion. Additionally, he challenges the denial of his 

motion to modify his sentence per 18 U.S.C. § 3582(c) or 3583(e)(2), reasoning that under United States v. Haymond, 139 S. Ct. 2369 (2019), his terms of 

imprisonment and supervised release together could not exceed 30 years and 

that any term of supervised release extending beyond the 30-year total was 

required to be modified to remove any conditions. In Pontefract’s view, 

Haymond applies retroactively. 

Pontefract need not obtain a COA to appeal the denial of any request 

for a modification of his sentence under § 3582(c) or 3583(e)(2). See

28 U.S.C. § 2253(c). But none of the scenarios he describes regarding these 

statutes is applicable to his case. See §§ 3582(c), 3583(e)(2). The district 

court therefore did not abuse its discretion in denying Pontefract’s motion to 

the extent he sought a modification in his sentence under §§ 3582(c) and 

3583(e)(2). 

Although Pontefract attempts to incorporate by reference the arguments that he made in his Rule 60(b) motion, he may not do so. See Yohey v. 

Collins, 985 F.2d 222, 224−25 (5th Cir. 1993). Additionally, Pontefract has 

abandoned, by failing to brief, any argument that his Rule 60(b) motion 

challenged the denial of his initial § 2255 motion instead of the transfer order. 

See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). 

As to Pontefract’s remaining arguments, to obtain a COA, he must 

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make “a substantial showing of the denial of a constitutional right.” 

§ 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). He may satisfy “this standard by demonstrating that jurists of reason could disagree with 

the district court’s resolution of his constitutional claims or that jurists could 

conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see Slack v. McDaniel, 529 U.S. 473, 

484 (2000). Pontefract has not met the standard. 

Accordingly, to the extent the district court denied Pontefract’s 

motion for modification of his sentence under §§ 3582(c) and 3583(e)(2), the 

order is AFFIRMED. Pontefract’s motion for a COA to appeal the remainder of the district court’s decision is DENIED. 

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