Billy Raheem Fortune v. HAROLD W. CLARKE, Director of the Virginia Department of Corrections

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-7231
BILLY RAHEEM FORTUNE,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director of the Virginia Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Arenda L. Wright Allen, District Judge. (2:13-cv-00687-AWA-TEM)
Submitted: January 23, 2018 Decided: February 23, 2018
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Billy Raheem Fortune, Appellant Pro Se. Donald Eldridge Jeffrey, III, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Billy Raheem Fortune seeks to appeal the district court’s order denying his Fed. R.
Civ. P. 60(b)(2) motion requesting relief from the court’s order dismissing his 28 U.S.C.
§ 2254 (2012) petition as time-barred. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012); United
States v. McRae, 793 F.3d 392, 397-99 (4th Cir. 2015).1 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 petition states a debatable claim of
the denial of a constitutional right. Slack, 529 U.S. at 484-85. We conclude that Fortune
has made the requisite showing. We therefore grant Fortune leave to proceed in forma
pauperis and grant a certificate of appealability.
The district court concluded that the timeliness of a Rule 60(b)(2) motion is a
jurisdictional requirement and denied Fortune’s motion as untimely for that reason. We
1 Fortune’s motion qualifies as a true Rule 60(b)(2) motion because he challenged
the dismissal of his original petition as time-barred. See Gonzalez v. Crosby, 545 U.S. 524,
532 n.4 (2005) (holding that movant presents true Rule 60(b) motion “when he . . . asserts
that a previous ruling which precluded a merits determination was in error,” including
dismissal of action as time-barred).

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review this decision for abuse of discretion. Moses v. Joyner, 815 F.3d 163, 166 (4th Cir.
2016), cert. denied, 137 S. Ct. 1202 (2017). The court correctly concluded that a Rule
60(b)(2) “must be made . . . no more than a year after the entry of the judgment or order or
the date of the proceeding” from which the litigant seeks relief. Fed. R. Civ. P. 60(c)(1).
However, we have held that “the Rule 60(b) one-year filing deadline is an affirmative
defense,” not a jurisdictional bar. McRae, 793 F.3d at 401. We have further explained that
a district court’s failure to recognize that it has discretion is an abuse of discretion.
Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 366 (4th Cir. 2012). Because the district
court did not recognize its discretion here, we vacate the court’s judgment and remand for
further proceedings.2
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED
2 In so holding, we express no opinion as to the timeliness of the motion or the
ultimate merit of Fortune’s claims.

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