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WHY DIDN’T I THINK OF THAT EARLIER?

Have you ever been bested in a debate or argument, or even just a heated discussion, only to come up with a devastatingly witty riposte about 10 minutes too late? The French call it esprit d’escalier, literally “staircase wit.”

That’s what happened to George Torres. After a murder conviction, he argued enthusiastically and at length for relief under 28 U.S.C. § 2255. When that motion failed, he filed for appeal, but then suddenly thought of a killer argument. The government could not have ever prosecuted him, he contended, because the statute of limitations had expired. That meant the court lacked jurisdiction, and therefore the government had committed a fraud on the court.

It’s a great argument, except that (1) the statute had not expired; (2) even if it had, an expired statute of limitations would not divest a court of subject matter jurisdiction; (3) even if it did, filing an action over which the court lacks jurisdiction does not constitute fraud on the court; and (4) he should not have waited until after the 2255 motion to come up with it. Alas, esprit d’escalier does not excuse raising a new issue late.

To George, these were just details. He filed a rather obscure but perfectly usable motion under F.R.Civ.P. 60(d)(3), alleging that the government had committed a fraud on the court by trying to prosecute him.

A 60(d) motion is useful, principally because – unlike a 60(b) motion – there are no time limits on it. But calling it a 60(d) did not make it so to the court, which quickly held that the argument was meritless. George promptly appealed.

The 2nd Circuit held earlier this week that it would treat the 60(d) motion just as if it were a 2255 motion itself, and require a certificate of appealability in order for George to pursue the argument in the appellate court.

The Circuit Court said, “We addressed a nearly identical question in Kellogg. In Kellogg, we explained that, because an order denying a Rule 60(b) motion is a “final order,” the plain text of § 2253(c)(1) makes the COA requirement applicable to an order denying a Rule 60(b) motion in a habeas proceeding under § 2254. The same principle applies here: because an order denying a Rule 60(d) motion is a final order, § 2253(c)(1)’s COA requirement applies to an order denying a Rule 60(d) motion in a § 2255 proceeding. Indeed, it would be inconsistent to apply the COA requirement in the Rule 60(b) context, but not the rule 60(d) context. Rule 60(b) and Rule 60(d) serve a similar purpose: to allow district courts, in appropriate circumstances, to grant relief from a judgment or final order.”

The Court then gave Torres’ argument all of the attention it deserved, which is to say it denied a COA in one short sentence.

Torres v. United States, Case No. 16-124 (2nd Cir.  August 9, 2016)