UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 13-67 (BAH) GARFIELD M. TAYLOR, Chief Judge Beryl A. Howell Defendant.

MEMORANDUM OPINION AND ORDER

On October 20, 2020, this Court denied defendant Garfield M. Taylor’s third Rule 60(b)

motion, which sought to reopen his habeas proceedings on the basis that he was improperly

denied additional discovery that would have substantiated his claim of ineffective assistance of

counsel. See United States v. Taylor (“Taylor II”), Crim. Action No. 13-67 (BAH),

, at *1, *6 (D.D.C. Oct. 20, 2020). The defendant then filed a Notice of Appeal and

Application for Certificate of Appealability (“Def.’s Appl.”), ECF Nos. 126, 127, and the D.C.

Circuit held his appeal in abeyance to allow this Court to consider, in the first instance, whether a

certificate of appealability (“COA”) is warranted, Order (“D.C. Cir. Order”) at 1, ECF No. 129.

The defendant contends that he is entitled to a COA because the decision denying his third Rule

60(b) motion “conflates re-opening the habeas proceedings with a request for ultimate habeas

relief on the merits,” Def.’s Appl. at 3, and “the question of whether [his third Rule 60(b)

motion] is a true 60(b) is adequate to deserve encouragement to proceed further,” id. at 5. The

government opposes the application, arguing that the defendant has not carried his burden to

demonstrate “that reasonable jurists would debate, or find wrong,” this Court’s conclusion that it

lacked jurisdiction to rule on the defendant’s third Rule 60(b) motion absent prior authorization

from the D.C. Circuit. Gov’t’s Opp’n Def.’s Appl. for Certificate of Appealability (“Gov’t’s

1 Opp’n”) at 8, ECF No. 130; see also id. at 6–9. For the reasons stated below, the defendant’s

application for a COA is denied.

I. BACKGROUND

The factual and procedural background of this case has been fully summarized in prior

decisions. See Taylor II,

, at *1–3; United States v. Taylor (“Taylor I”),

, 149–52 (D.D.C. 2017). Only those facts necessary for resolving the instant

motion are provided herein.

On March 6, 2014, the defendant pled guilty to one count of securities fraud, in violation

of 15 U.S.C. §§ 78j and 78ff. Taylor I,

; Taylor II,

, at

*1. This charge “stemm[ed] from his operation,” from roughly 2006 to 2010, “of a Ponzi

scheme that defrauded over 150 victims of over $25 million.” Taylor I,

;

see also Taylor II,

, at *1. On May 12, 2015, the defendant was sentenced to

156 months of incarceration. He was also ordered to pay restitution in the amount of

$28,609,438 to the victims of his scheme. Taylor I,

; Taylor II,

, at *1. Approximately one year after his sentence was imposed, on May 4, 2016, the

defendant’s case was reassigned to the undersigned Judge, following the retirement of the

original sentencing Judge. Taylor II,

, at *1 (citing Min. Entry (May 4,

2016)).

Soon after, on May 24, 2016, the defendant filed pro se motions pursuant to

, seeking to have his guilty plea and sentence vacated on the basis that he received

ineffective assistance of counsel and requesting leave to conduct additional discovery in support

of his ineffectiveness claim. Taylor I,

. On June 7, 2017, those

motions were denied because “the defendant fail[ed] to demonstrate any instances of ineffective

2 assistance of counsel,”

, and had not made the requisite showing of “‘good cause’” for

additional discovery,

at 159 (quoting Dist. Att’ys Off. for the Third Jud. Dist. v. Osborne,

(2009)).

On July 21, 2017, the “defendant simultaneously appealed the Order denying his § 2255

petition and filed a new motion raising claims under Federal Rules of Civil Procedure 60(b)(1),

15(d), and 59(e), which motion was his first Rule 60(b) motion.” Taylor II,

, at

*2. This Rule 60(b) motion, which challenged the Court’s conclusion, in deciding the

defendant’s § 2255 motion, that he had not demonstrated ineffective assistance of counsel, “was

‘construe[d] as in substance a . . . habeas petition’ because it attacked the disposition of

defendant’s original § 2255 motion on the merits, . . . and therefore was subject to ‘the

limitations on second or successive motions’ under

,”” including the

requirement that the defendant obtain pre-filing authorization from the D.C. Circuit before filing

the motion in this Court.

(alteration and first omission in original) (quoting Min. Order (Oct.

4, 2017)); see also

(h); United States v. Arrington,

(D.C. Cir.

2014). As a result of the defendant’s failure to do so, the Rule 60(b) motion was denied in a

minute order issued on October 4, 2017. Taylor II,

, at *2 (citing Min. Order

(Oct. 4, 2017)).

On December 14, 2017, the defendant was granted leave to file three further pro se

motions, including his second Rule 60(b) motion.

This motion “again advanced the

argument that [defendant] had received ineffective assistance of counsel.”

On December 15,

2017, the defendant’s second Rule 60(b) motion was “denied . . . on the merits” because it was

“‘virtually identical’” to his earlier motions, and its only new claim, that defendant’s first Rule

3 60(b) motion “‘should not have been construed as a successive § 2255 motion,’ . . . was

‘precluded as a matter of law by [Arrington].’” Id. at *3 (quoting Min. Order (Dec. 15, 2017)).

In March 2020, defendant sought leave to file a third pro se Rule 60(b) motion to reopen

his § 2255 proceedings because “denial of [additional] discovery prevented him from

demonstrating his entitlement to collateral relief,” Def.’s Mot. Under Rule 60(b) to Re-Open

Habeas Corpus Proceedings Pursuant to § 2255 (“Def.’s Mot.”), at 5, ECF No. 124, and

“records . . . obtained [by defendant] after the denial of collateral relief” would have supported a

finding of ineffective assistance of counsel and a resulting decision to vacate his sentence, id. at

7. The proposed motion included “a number of exhibits . . . consisting primarily of financial

statements, bank records, and checks from defendant’s former companies and investors, [which]

constitute[d] at least some portion of the new evidence that, defendant claims, he was prevented

from obtaining and that would have proven his right to collateral relief.” Taylor II,

, at *3. Leave to file this third Rule 60(b) motion was initially denied because the

motion “‘ha[d] previously been denied.’”

(alteration in original) (quoting Min. Entry (Mar.

13, 2020)). The defendant submitted a pro se motion, dated April 6, 2020, seeking

reconsideration of this decision, which motion was entered on the docket on April 24, 2020.

On October 20, 2020, the defendant’s motion for reconsideration was granted. Id. at *4.

His third Rule 60(b) motion therefore was docketed, see Def.’s Mot., but was denied in the same

order, Taylor II,

, at *6. The Court explained that, in the habeas context, “[a]

Rule 60(b) motion may be brought to ‘attack[], not the substance of the federal court’s resolution

of a claim on the merits, but some defect in the integrity of federal habeas proceedings.’” Id. at

*4 (second alteration in original) (quoting Gonzalez v. Crosby,

(2005)). Thus,

“‘a Rule 60(b) motion that attacks the court’s prior resolution of a § 2255 claim on the merits is

4 similar enough to a habeas motion’” that it constitutes a second or successive habeas petition and

consequently, “‘the district court . . . may not consider the motion without prior authorization

from the court of appeals.”” Id. (quoting United States v. Fields,

(D.D.C.

2019)). The defendant’s third Rule 60(b) motion, which “challenge[d] . . . the denial of

discovery to defendant in the disposition of his habeas petition . . .[was] a challenge to the merits

of that decision.” Id. at *6; see also Bracy v. Gramley,

(1997); Fields,

(finding that “a claim that discovery was improperly denied works to undermine a

prior merits decision”). As a result, the motion was “construed as a successive habeas petition,

which, without the D.C. Circuit having granted permission to file, [was] outside the jurisdiction

of this Court” and was therefore denied. Taylor II,

, at *6.

On December 22, 2020, the defendant appealed the denial of his third Rule 60(b) motion

to the D.C. Circuit, and filed an application for a COA. Def’s Appl. On December 31, 2020, the

D.C. Circuit referred the defendant’s appeal to this Court to determine whether a COA is

warranted. D.C. Cir. Order at 1. At the Court’s direction, see Min. Order (Jan. 4, 2021), on

January 15, 2021, the government filed its opposition, see Gov’t’s Opp’n. Defendant’s

application is now ripe for resolution.

II. LEGAL STANDARD

A defendant may not appeal “the final order in a proceeding under section 2255” unless

“a circuit justice or judge issues a certificate of appealability.”

(c)(1)(B). If a

defendant’s claim is denied on the merits, a COA may be granted “only if the applicant has made

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

§ 2253(c)(2); see also United

States v. Clark,

(D.C. Cir. 2020); Blount v. United States,

(D.C. Cir. 2017). To satisfy this requirement, the petitioner must “demonstrate that

5 reasonable jurists would find the district court’s assessment of the constitutional claims debatable

or wrong.” Slack v. McDaniel,

(2000); see also Blount,

;

Arrington,

. “Where . . . ‘the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional claim,’ the successful COA

applicant must show [the court] that ‘jurists of reason would find . . . debatable’ not only

‘whether the petition states a valid claim of the denial of a constitutional right,’ but also ‘whether

the district court was correct in its procedural ruling.’” Blount,

(second omission

in original) (quoting Slack,

).

III. DISCUSSION

The defendant’s third Rule 60(b) motion sought to reopen his § 2255 proceedings on the

ground that the Court’s denial of his § 2255 motion in Taylor I was “void” and a “legal nullity”

because, in his view, the denial of additional discovery in that case constituted a denial of due

process. Def.’s Mot. at 2, 5, 8, 10. In his application for a COA, the defendant now contends

that that the Court’s denial of his third Rule 60(b) motion in Taylor II inappropriately conflated

his request to reopen his habeas proceedings with a request for relief on the merits, and that the

question of whether his third Rule 60(b) motion should have been treated as a successive habeas

petition rather than a Rule 60(b) motion is itself sufficient to support a COA. Def.’s Appl. at 3,

5. The defendant does not, however, demonstrate that reasonable jurists would debate the denial

of his third Rule 60(b) motion for failure to comply with § 2255(h)’s pre-filing authorization

requirement and therefore is not entitled to a COA.

Rule 60(b) applies in habeas proceedings “only to the extent that [it is] not inconsistent

with applicable federal statutory provisions and rules,” Crosby, 525 U.S. at 529 (alteration in

original) (internal quotation marks omitted); see also Arrington,

(holding that this

6 principle applies to § 2255 proceedings), including, as relevant here, the habeas statute’s

mandate that a district court may not consider any second or successive petition for relief under

§ 2255 without the pre-filing approval of a court of appeals, see

(h). This

“requirement to obtain authorization for a second or successive habeas petition is a jurisdictional

prerequisite.” Ford v. Massarone,

(D.C. Cir. 2018) (citing Burton v. Stewart,

(2007); United States v. Springer,

(10th Cir. 2017)). In the

habeas context, a true Rule 60(b) motion may be brought only to “attack[] . . . some defect in the

integrity of federal habeas proceedings.” Crosby,

; see also Arrington,

. Thus, a Rule 60(b) motion that does not challenge the resolution of a § 2255 claim on

procedural grounds, but instead “seeks to add a new ground of relief” or “attacks the federal

court’s previous resolution of a claim on the merits” must be treated as a successive habeas

petition, subject to § 2255(h)’s pre-filing authorization requirement. Crosby, 525 U.S. at 532

(emphasis omitted); see also Fields,

.

Applying this framework, the government contends that the defendant fails to make the

requisite showing that reasonable jurists would debate Taylor II’s conclusions that the

defendant’s third Rule 60(b) motion is functionally a successive habeas petition and thus must be

denied because he did not obtain pre-filing authorization from a court of appeals. Gov’t’s Opp’n

at 6–9. The defendant’s third Rule 60(b) motion raises the claim that the denial of additional

discovery in his § 2255 proceeding constituted a denial of due process that prevented him from

substantiating his ineffectiveness claim. Def.’s Mot. at 2, 5, 8, 10. The defendant contends that

“[a] reasonable jurist could disagree with this Court’s” conclusion that his discovery claim

challenges the resolution of the merits of his § 2255 petition because the reopening of his habeas

petition to allow for new discovery “would not automatically assure any success” on his

7 underlying requests to vacate his guilty plea and sentence. Def.’s Appl. at 3. This argument,

however, misunderstands the relationship between the good-cause standard for a habeas

petitioner to obtain discovery and the resolution of the underlying habeas claims.

Habeas petitioners are “not entitled to discovery as a matter of ordinary course.” Bracy,

. Rather, Rule 6(a) of the Rules Governing Section 2255 Proceedings allows a

judge to “authorize a party to conduct discovery” only “for good cause.” To make a showing of

good cause, the petitioner must raise “specific allegations” that give the court “reason to believe

that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . .

entitled to relief.” Bracy, 520 U.S. at 908–09 (omission in original) (quoting Harris v. Nelson,

(1969)). This standard imposes on habeas petitioners “some burden to

establish that discovery is merited,” Fields,

, because it might ultimately

allow the petitioner to demonstrate his entitlement to post-conviction relief. A petitioner’s

argument, in the context of a Rule 60(b) motion, that he has made this showing and therefore

should have been granted discovery necessarily encompasses the argument that his underlying

claims for post-conviction relief were wrongly denied in the first place, regardless of whether the

petitioner would ultimately prevail in new habeas proceedings. Consequently, “a claim that

discovery was improperly denied works to undermine a prior merits decision,”

and no

reasonable jurist would debate the conclusion that a Rule 60(b) motion such as defendant’s,

challenging the disposition of a discovery claim, must be construed as a successive habeas

petition, see, e.g., In re Robinson,

(5th Cir. 2019) (finding that petitioner’s

Rule 60(b) motion challenging the denial of a discovery request during his § 2255 proceedings

was “best viewed as a second or successive § 2255 motion”); Deloge v. Warden, Wyo. Medium

Corr. Inst.,

, 612 (10th Cir. 2019) (same); Fields,

.

8 Having established that the defendant’s third Rule 60(b) motion is properly treated as a

successive habeas petition, subject to the procedural requirements set forth in § 2255(h), no

reasonable jurist would dispute the resulting conclusion that, absent pre-filing authorization from

a court of appeals, the Court lacked jurisdiction over defendant’s third Rule 60(b) motion. See

Taylor II,

, at *5–6. Indeed, the D.C. Circuit has found that a petitioner is not

entitled to a COA challenging a district court’s denial, on procedural grounds, of a Rule 60(b)

motion for which the petitioner had not “obtained (or sought) a certificate of appealability”

before filing. Arrington,

. In such cases, the petitioner “[does] not—and cannot—

satisfy the procedural requirements applicable to second or successive motions under § 2255,”

id. at 23, and “‘jurists of reason’ therefore would not debate the correctness of the district court’s

denial of the Rule 60(b) motion on procedural grounds,” id. at 24 (alteration omitted) (quoting

United States v. Pollard,

(D.C. Cir. 2005)); see also United States v. Baker,

(10th Cir. 2013) (denying a COA “because reasonable jurists would not find

debatable” the district court’s dismissal of a Rule 60(b) motion for which the petitioner did not

obtain pre-filing authorization); Munoz v. United States,

(1st Cir. 2003) (per

curiam) (treating a Rule 60(b) as a successive § 2255 petition filed without prior approval and

thus denying a COA).

IV. ORDER

Accordingly, upon consideration of the defendant’s application, the government’s

opposition, and the entire record herein, it is hereby

ORDERED that the defendant Garfield M. Taylor’s Application for a Certificate of

Appealability is DENIED; and it is further

9 ORDERED that the Clerk of the Court shall notify the D.C. Circuit that the Court has

denied the defendant’s application, see D.C. Cir. Order at 1.

SO ORDERED.

Date: January 21, 2021

__________________________ BERYL A. HOWELL Chief Judge

10