UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SAMUEL ALLAN MOODY, 

Petitioner-Appellant,

v.

GARY MAYNARD, Commissioner of  No. 03-6650 South Carolina District Court;

STATE OF SOUTH CAROLINA; CHARLES

CONDON, Attorney General of the

State of South Carolina,

Respondents-Appellees. 



In re: SAMUEL ALLAN MOODY,  No. 03-206

Movant. 

Appeal from the United States District Court

for the District of South Carolina, at Anderson.

Cameron McGowan Currie, District Judge.

(CA-01-3919-8-22-BI)

Argued: May 7, 2004

Decided: July 16, 2004

Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.

No. 03-6650 dismissed; No. 03-206 denied by unpublished per

curiam opinion. 
COUNSEL

ARGUED: Neal Lawrence Walters, Charlottesville, Virginia, for

Appellant. Samuel Creighton Waters, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. ON BRIEF: Henry

Dargan McMaster, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney

General, Columbia, South Carolina, for Appellees. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Samuel Allan Moody appeals an order of the district court denying

his pro se application for habeas corpus relief, see 28 U.S.C.A.

§ 2254 (West 1994 & Supp. 2004), and the district court’s subsequent

order denying his pro se "motion for rehearing." Moody also seeks

permission, via pro se motion in this court, to file a successive application for habeas relief. See 28 U.S.C.A. § 2244(b) (West Supp.

2003). 

We dismiss Moody’s appeal of the order denying habeas relief for

lack of appellate jurisdiction. We decline to issue Moody a certificate

of appealability to appeal the denial of his motion for rehearing, and

dismiss that portion of his appeal as well. Finally, we deny the motion

seeking authorization to file a successive habeas application. 

I.

Moody pled guilty in South Carolina state court to numerous

charges, including second-degree burglary, larceny, malicious injury

to personal property, felony DUI, and multiple counts of safecracking.

2 MOODY v. MAYNARD
Moody received a 15-year prison sentence, which consisted of multiple concurrent sentences. Moody did not directly appeal his convictions or sentence. 

In February 1998, Moody filed a pro se action for post-conviction

relief ("PCR") in state court, contending that his guilty plea was not

voluntary because the state judge misstated during sentencing the law

regarding the percentage of Moody’s prison term that he would be

required to serve, that he was not sentenced in accordance with an

alleged plea agreement, and that his attorney provided ineffective

assistance of counsel by failing to correct the foregoing and other

problems. Following an evidentiary hearing at which the prosecutor

and Moody’s own trial counsel denied the existence of a plea agreement and Moody admitted having decided to plead guilty before the

alleged misstatement was made and even before sentencing occurred,

the PCR court denied relief and dismissed Moody’s petition. Moody

unsuccessfully appealed the denial of PCR relief to the South Carolina Court of Appeals, and the Supreme Court of South Carolina

denied Moody’s subsequent petition for certiorari review of the PCR

denial. 

On October 5, 2001, Moody filed in district court this pro se application for habeas relief under section 2254. Moody’s federal habeas

application raised three claims for relief: 1) that his guilty plea was

involuntary because the sentencing judge misstated the percentage of

the sentence he would serve; 2) that he received ineffective assistance

of counsel because his lawyer failed to correct the sentencing judge’s

purported misstatement or object to the failure of either the government or the sentencing court to abide by the terms of the plea agreement; and 3) that the prosecutors failed to correct the sentencing

judge’s misstatement regarding the percentage of the sentence that

Moody would be required to serve. The State moved for summary

judgment. 

On April 18, 2002, Moody filed what purported to be a second pro

se habeas application, including new assertions that his conviction

resulted from a "coerced confession," that counsel failed to object to

the "stacking" of charges, and that counsel did not advise him of the

right to appeal his conviction. The district court construed this filing

as a response to the State’s summary judgment motion and essentially

MOODY v. MAYNARD 3
permitted Moody to amend his habeas application to include these

claims. 

The district court granted the State’s motion for summary judgment

and dismissed Moody’s application. On Moody’s claim that his guilty

plea was involuntary because the sentencing judge misinformed him

about the percentage of his sentence that the law required him to

serve, the court adopted the magistrate judge’s finding that there was

no evidence that Moody relied on any statement by the sentencing

court in deciding to plead guilty. In fact, Moody testified at his state

PCR hearing that he had already made the decision to plead guilty

before the sentencing judge made the statement about which Moody

complains.* With respect to Moody’s ineffective assistance claim, the

district court denied it on the merits, concluding that the PCR court

did not clearly err in its decision to credit over Moody’s contrary

assertion the testimony of Moody’s attorney, the prosecutor, and law

enforcement officers that there was no plea agreement. Finally, the

district court concluded that Moody’s claim based on the State’s

alleged failure to correct statements by the sentencing judge was procedurally barred. 

As for the claims Moody was permitted to assert in his response

to the State’s motion for summary judgment, the district court concluded that Moody was procedurally barred from raising all but the

claim that his attorney provided ineffective assistance by failing to

advise him of his right to appeal his convictions. Relying on the PCR

court’s finding that Moody "‘failed to show that the outcome of his

trial would have been different but for the alleged deficient performance of his counsel,’" J.A. 56, the district court denied relief on that

claim as well. On December 2, 2002, the district court entered an

order granting summary judgment to the State on Moody’s habeas

application. 

On January 6, 2003, Moody filed a "motion for rehearing" in which

he simply reasserted various factual allegations underlying his ineffective assistance claim and his claim that his guilty plea was not vol-

*Moody reiterated this position in his federal pleadings, stating that he

"decided to plead guilty in Jan. 97" but "didn’t go to court until April

97." J.A. 63. 

4 MOODY v. MAYNARD
untary. Moody did not challenge the district court’s conclusion that

a number of his claims were procedurally barred, nor did he challenge

the denial of his claim that his attorney rendered ineffective assistance

by failing to explain the right to appeal. Although, as Moody concedes, the motion was untimely under Rule 59(e) of the Federal Rules

of Civil Procedure, the district court construed it as a Rule 59(e)

motion to alter or amend the judgment. On March 27, 2003, the court

denied the motion because Moody failed to identify any newly discovered evidence, intervening changes in the law, or grounds demonstrating that the judgment would result in manifest injustice. 

On April 14, 2003, Moody filed a Notice of Appeal from the district court’s December 2, 2002, order denying relief under section

2254, as well as the district court’s March 27, 2003, order denying

Moody’s "motion for rehearing." The appeal was docketed as case

number 03-6650. 

On June 30, 2003, with the appeal in case 03-6650 pending, Moody

filed in this court a pro se motion for authorization to file a second

or successive section 2254 application. In it, he raises a jumble of

claims, some old and some new. Moody’s motion for authorization to

file a successive habeas application was docketed as case number 03-

206. The cases then were consolidated. 

II.

A. Appeal of the December 2, 2002, Order Denying the Habeas

Application 

On December 2, 2002, the district court entered its order granting

summary judgment to the State on all of the claims asserted in

Moody’s application for relief under section 2254. Moody had thirty

days to file the Notice of Appeal. See Fed. R. App. P. 4(a). Moody

filed his Notice of Appeal on April 2, 2003, well beyond the 30-day

deadline. 

On December 13, Moody submitted, in the form of a letter, a

request for an extension of time in which to file the notice of appeal.

Rule 4(a)(5) permits a district court, upon the appellant’s motion, to

MOODY v. MAYNARD 5
extend the time for filing the Notice of Appeal, provided the motion

for extension of time is filed no later than 30 days after the expiration

of the original 30 day period for filing the Notice of Appeal. See Fed.

R. App. P. 4(a)(5)(A)(i). The district court, for good cause or excusable neglect, may grant a maximum of 30 additional days. See Fed.

R. App. P. 4(a)(5)(C). Moody’s request was timely, but the district

court never ruled on the request, effectively denying it because the

mere filing of a motion for an extension does not operate to extend

or toll the 30-day period for filing the Notice of Appeal. 

Potentially, Moody could have preserved his appeal of the underlying order through Appellate Rule 4(a)(4), which tolls the running of

the thirty-day period until after the disposition of a "timely file[d]"

post-judgment motion under Rule 59(e) of the Federal Rules of Civil

Procedure. Fed. R. App. P. 4(a)(4)(A) (emphasis added). To be

timely, a Rule 59(e) motion must be filed within ten days of entry of

the judgment. Although Moody filed a "motion for rehearing on

report of Summary Judgment," J.A. 59, which the district court construed as a Rule 59(e) motion to alter or amend the judgment, he did

not do so until December 31, 2002. Because only a timely Rule 59(e)

motion tolls the running of the 30-day period for filing a Notice of

Appeal, the exception created by Appellate Rule 4(a)(4) was unavailable to Moody when he filed his motion outside of the mandatory 10-

day period prescribed by Rule 59(e). See Alston v. MCI Communications Corp., 84 F.3d 705, 706 (4th Cir. 1996); accord Garcia-Velquez

v. Frito Lay Snacks Caribbean, 358 F.3d 6, 8 (1st Cir. 2004). The fact

that the district court addressed Moody’s motion on the merits did not

cure the untimeliness of the motion because a district court lacks

authority to extend the ten-day time limit of Rule 59(e) for tolling

purposes under Appellate Rule 4(a)(4)(A). See Alston, 84 F.3d at 706

("The thirty-day time period for filing the notice of appeal could not

be deferred on the basis of the district court’s order [permitting] Alston[ ] [to file a] belated Rule 59(e) motion."). Moody’s motion, therefore, is more properly viewed as one for relief from a judgment under

Rule 60(b) of the Federal Rules of Civil Procedure, which may be

filed within a year from the entry of the order sought to be appealed.

See United States v. Winestock, 340 F.3d 200, 203 (4th Cir.) (treating

habeas applicant’s "Motion for Reconsideration, or in the Alternative,

Motion for Certificate of Appealability" as a Rule 60(b) motion

because it "was filed more than ten days after the entry of judgment"),

6 MOODY v. MAYNARD
cert. denied, 124 S. Ct. 496 (2003); Small v. Hunt, 98 F.3d 789, 797

(4th Cir. 1996). Accordingly, to the extent that Moody appeals the

district court’s December 2, 2002, order denying Moody’s application

for habeas relief under section 2254, we lack jurisdiction and dismiss

his appeal. 

B. Appeal of the March 27, 2003, Order Denying the Motion for

Rehearing 

The Notice of Appeal also refers specifically to the district court’s

March 27, 2003, order denying Moody’s motion for rehearing, which

we view as a motion for relief under Rule 60(b). With respect to this

order, the Notice of Appeal was timely and, therefore, Rule 4 of the

Federal Rules of Appellate Procedure poses no jurisdictional impediment to appellate review. 

The timely filing of Moody’s Notice of Appeal with respect to the

denial of his motion for rehearing permits us to consider two additional preliminary questions. One is whether Moody’s "motion for

rehearing," which rehashed claims raised in the initial habeas application, was, in fact, a successive habeas application for which pre-filing

authorization was required from this court. See 28 U.S.C.A.

§ 2244(b)(3). The other is whether we should issue a Certificate of

Appealability ("COA") to Moody, allowing him to obtain review of

the denial of his motion for rehearing. See 28 U.S.C.A.

§ 2253(c)(1)(A) (West Supp. 2003). 

The answer to the first question may be more readily apparent than

the answer to the second. Because Moody merely used his motion for

rehearing to repeat the same factual bases for the claims he asserted

in his section 2254 application, his motion appears to assert successive claims for habeas relief. In Winestock, after first determining that

the applicant’s motion for reconsideration should be viewed as a Rule

60(b) motion because it did not comply with the 10-day time limit

under Rule 59(e), we held that "district courts must treat Rule 60(b)

motions as successive collateral review applications when failing to

do so would allow the applicant to ‘evade the bar against relitigation

of claims presented in a prior application.’" 340 F.3d at 206 (quoting

Calderon v. Thompson, 523 U.S. 538, 553 (1998)). Winestock

instructs that "a motion directly attacking the prisoner’s conviction or

MOODY v. MAYNARD 7
sentence will usually amount to a successive application, while a

motion seeking a remedy for some defect in the collateral review process will generally be deemed a proper motion to reconsider." Id. at

207. Moody’s motion for rehearing clearly and directly attacks his

conviction rather than some defect in process that would be cognizable under an authentic Rule 60(b) motion. Thus, Moody’s motion for

rehearing almost certainly contains successive habeas claims for

which pre-filing authorization was not obtained, see 28 U.S.C.A.

§ 2244(b)(3), stripping the district court of jurisdiction to rule on the

motion. 

Nevertheless, before we can consider the district court’s jurisdiction, we must ensure that we ourselves have jurisdiction to review the

proceedings below. Absent the issuance of a COA, a habeas applicant

may not appeal from a district court’s "final order in a habeas corpus

proceeding" under section 2254. See 28 U.S.C.A. § 2253(c)(1)(A). As

noted previously, because Moody’s motion was filed more than 10

days from the entry of judgment, we view it as a motion for relief

under Rule 60(b). See Winestock, 340 F.3d at 203; Alston, 84 F.3d at

706. Our recent decision in Reid v. Angelone, 369 F.3d 363 (4th Cir.

2004), established that the COA requirement set forth in section

2253(c) applies to the appeal of an order denying a Rule 60(b) motion

that, in turn, seeks relief from the underlying denial of a habeas application. See id. at 369. In Reid, we granted a COA on one of the issues

raised in the prisoner’s Rule 60(b) motion, but then held that the

motion was, in effect, a successive habeas application over which the

district court had no jurisdiction. See id. at 374-75. We explained that

"we may not forgo the COA inquiry altogether, as there is no exemption in § 2253(c) for questions of subject-matter jurisdiction" and that

"we are bound in all cases to ascertain our own appellate jurisdiction

before reviewing a district court judgment." Id. at 374 n.7. Thus, even

when we are presented with an appeal raising a claim that is recharacterized under Winestock and subject to dismissal as a successive

habeas claim — as is likely the case here — the proper analytical progression requires us first to decide whether to issue a COA. 

We now turn to the question of whether Moody is entitled to a

COA for the denial of his Rule 60(b) motion. Section 2253(c) allows

the issuance of a COA only when the petitioner makes a "substantial

showing of the denial of a constitutional right." 28 U.S.C.A.

8 MOODY v. MAYNARD
§ 2253(c)(2). The statute "requires an overview of the claims in the

habeas petition and a general assessment of their merits," rather than

"full consideration of the factual or legal bases adduced in support of

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

the district court rejects the constitutional claim at issue on the merits,

"the showing required to satisfy § 2253(c) is straightforward: The

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). When the district court dismisses the claim on procedural grounds, the petitioner

is entitled to a COA only if "jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right" and "jurists of reason would find it debatable whether the

district court was correct in its procedural ruling." Id.

In determining whether the petitioner’s claims satisfy the requirements of section 2253(c), we must begin by identifying the claims

advanced by Moody in his Rule 60(b) motion. Moody’s motion consisted of a long list of what he considered factual errors by the district

court in its disposition of his claims. Moody did not challenge the district court’s conclusion that some of the claims were procedurally

barred, and he did not challenge the denial of his ineffective assistance claim to the extent that it was based on the allegation that his

lawyer failed to explain that he could directly appeal his convictions.

Accordingly, Moody’s motion really pursues only two of his original

claims: 1) that his guilty plea was not knowingly, intelligently, or voluntarily made because the state judge misstated the percentage of his

sentence he would be required to serve; and 2) that he received ineffective assistance of counsel in that his attorney failed to properly

advise him about the amount of time he would serve and failed to

raise the government’s breach of the plea agreement during sentencing. 

With respect to these claims, Moody has failed to demonstrate in

any way "that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong." Slack, 529

U.S. at 484. Accordingly, we conclude that Moody has failed to make

a substantial showing of the denial of a constitutional right as regards

either of the claims raised in Moody’s motion for rehearing, and we

deny a certificate of appealability in 03-6650. 

MOODY v. MAYNARD 9
III.

Finally, we must determine whether or not to grant Moody’s

motion for authorization to file a successive habeas application, No.

03-206, which he filed on June 30, 2003, pursuant to section 2244.

This motion, which was filed pro se, raised two claims. First, Moody

again raised an ineffective assistance of counsel claim, contending

among other things that his lack of adequate representation caused

Moody’s guilty plea not to be knowing or voluntary. Second, Moody

contended that the parole eligibility requirements imposed by South

Carolina law are unconstitutional. 

We may "authorize the filing of a second or successive application

only if . . . the application makes a prima facie showing that the application satisfies the requirements of [28 U.S.C.A. § 2244(b)]." 28

U.S.C.A. § 2244(b)(3)(c). Section 2244(b) requires Moody to show

that his successive claims rely upon "a new rule of constitutional law"

that was "previously unavailable," 28 U.S.C.A. § 2244(b)(2)(A), or a

"factual predicate" that "could not have been discovered previously

through the exercise of due diligence," 28 U.S.C.A. § 2244(b)(2)

(B)(i). We must consider each of the claims raised in the proposed

successive application and, if any single claim in the proposed application meets the statutory requirements, the entire application may be

filed. See In re Williams, 330 F.3d 277, 281 (4th Cir. 2003). 

Moody’s ineffective assistance claim is predicated primarily upon

identical factual bases recycled from his initial habeas application,

and therefore fails to pass muster. Under section 2244(b)(1), "[a]

claim presented in a second or successive habeas corpus application

under section 2254 that was presented in a prior application shall be

dismissed." To the extent the ineffective assistance claim relies upon

different factual bases than previously asserted, Moody fails to make

the required prima facie showing of merit under section 2244(b). 

Moody’s claim that South Carolina’s statutory provisions relating

to parole eligibility offend his rights under various constitutional

guarantees is a claim he raises for the first time. Precisely what

Moody is claiming is far from clear, although the lack of precision is

understandable given the pro se nature of his motion for authorization. The heart of his claim is that two South Carolina parole statutes

10 MOODY v. MAYNARD
— S.C. Code Ann. §§ 16-1-60 and 24-21-640 — abridge his rights

under the Ex Post Facto Clause, deprive him of due process, and constitute cruel and unusual punishment as applied to him. Moody’s

claim, charitably construed, challenges the execution of the sentence

as well as the sentence itself. To the extent Moody challenges the

original imposition of his sentence based on these statutes, the claim

is clearly subject to the limits imposed by section 2244(b)(2)(A) upon

successive habeas claims. And, Moody has failed to demonstrate that

this claim relies upon "a new rule of constitutional law" that was "previously unavailable," 28 U.S.C.A. § 2244(b)(2)(A), or a "factual predicate" that "could not have been discovered previously through the

exercise of due diligence," 28 U.S.C.A. § 2244(b)(2)(B)(i). 

To the extent Moody is challenging the execution or administration

of his sentence, we have acknowledged that there is authority to the

effect that "a § 2254 petition challenging decisions relating to the execution of the judgment does not amount to a successive application

if the prisoner filed his previous § 2254 petition before those decisions were made and challenged only the underlying criminal judgment." Winestock, 340 F.3d at 205 n.4. Where, however, a prisoner

knows "all of the facts necessary to raise his [attack on the execution

of his sentence] before . . . fil[ing] his initial federal petition," such

a claim is successive and subject to the limits imposed by section

2244(b). See Crone v. Cockrell, 324 F.3d 833, 837 (5th Cir.) (emphasis added), cert. denied, 124 S. Ct. 287 (2003); cf. James v. Walsh,

308 F.3d 162, 168 (2nd Cir. 2002) (concluding prisoner’s § 2254

application challenging his release date based on credit for time

served was not successive because he "could not have argued that he

was in custody in violation of laws of the United States before the

time when, according to his calculations, he should have been

released"). 

Here, Moody’s challenge to the execution of his sentence is not

based on any factual premise that was not in existence when he filed

his initial federal habeas application. Accordingly, Moody’s claim is

successive and subject to our review under the gatekeeping requirements of section 2244(b), which he fails to satisfy. We therefore

decline to grant authorization for Moody to file his successive habeas

claims. 

MOODY v. MAYNARD 11
IV.

For the foregoing reasons, we dismiss Moody’s appeal and deny

his motion for authorization to file a successive habeas application.

No. 03-6650 DISMISSED

No. 03-206 DENIED

12 MOODY v. MAYNARD