Background
Robbie Newby, a federal prisoner, moved for a certificate of appealability to appeal the district court’s dismissal of his Rule sixty-b motion as an unauthorized successive petition under section two thousand two hundred fifty-five of title twenty-eight of the United States Code.
The court’s reasoning
The court held that Newby’s requested certificate of appealability was improper because he sought review on whether his motion was successive or timely, neither of which constitutes a denial of a constitutional right. The court explained that a Rule sixty-b motion advancing a new claim or attacking a prior resolution on the merits is treated as a second-or-successive petition requiring permission under section two thousand two hundred forty-four. The standard for such permission is nearly insurmountable and requires a prima facie showing of a new rule of constitutional law or new evidence of innocence, which is a higher bar than the substantial showing required for a certificate of appealability. Consequently, the court dismissed the application and denied the application to proceed in forma pauperis as moot.
Here, Newby does not seek a COA based on a denial of a constitutional right.
United States v. Newby, No. 25-40621 (5th Cir. May 6, 2026)
What it means going forward
Federal prisoners cannot obtain a certificate of appealability to challenge procedural rulings on the successiveness of habeas motions, as such issues do not meet the constitutional denial threshold required by statute.
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