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.
2

GREGORY, Circuit Judge:

Appellant Madison Duane McRae was convicted of four drugrelated 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.
3

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 
4

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 
5

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 
6

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 
7

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 
8

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 
9

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 
10

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. 
11

§ 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.
12

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 
13

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 
14

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).
15

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)).
16

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.
17

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.
18

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).
19

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).
20

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)). 
21

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
22

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.
23

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).
24

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 
25

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 
26

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 
27

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, 
28

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.