NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 23 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-35204

Plaintiff-Appellee, D.C. Nos. 1:21-cv-00071-SPW 1:19-cr-00019-SPW-1 v.

AMBER LYNN LANPHEAR MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted June 16, 2023** Portland, Oregon

Before: RAWLINSON and TALLMAN, Circuit Judges, and RAKOFF, District Judge.***

In 2020, the appellant, Amber Lanphear, pled guilty to conspiracy to possess

with intent to distribute methamphetamine and possession of a firearm in furtherance

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 1 of a drug trafficking crime. That same year, she was sentenced to an aggregate term

of 96 months in prison. Lanphear did not appeal this sentence or her conviction.

However, in June 2021, she filed a 28 U.S.C. § 2255 motion claiming that ineffective

assistance by her counsel undermined the voluntariness of her guilty plea and,

separately, that her counsel coerced her into accepting a guilty plea deal. The district

court denied this motion and declined to issue a certificate of appealability (“COA”)

with respect to it.

Two weeks later, Lanphear wrote a letter to the district court in which she

requested to amend her § 2255 motion to supplement her coercion and ineffective

assistance claims with additional facts. The district court treated this letter as a Rule

59(e) motion for reconsideration and, because Lanphear did not offer any newly

discovered evidence or other grounds warranting reconsideration, denied it, too. This

time, however, the district court issued Lanphear a COA with respect to the court’s

refusal to reconsider whether ineffective assistance by her counsel undermined the

voluntariness of her guilty plea. After issuance of the COA, this appeal by Lanphear

followed. The Government filed a motion to dismiss this appeal, arguing that the

COA was improvidently granted. This motion, in turn, was denied without prejudice

to the Government’s renewing its arguments in its answering brief.

We have jurisdiction to hear Lanphear’s appeal under 28 U.S.C. §§ 1291 and

2253. For the reasons stated below, we find that the district court’s COA was

2 improvidently granted and, accordingly, dismiss the instant appeal.

A COA should issue with respect to a Rule 59(e) motion only where the

applicant “has made a substantial showing of the denial of a constitutional right.”

Cf. 28 U.S.C. § 2253(c)(2). This standard, in turn, is satisfied only if “(1) jurists of

reason would find it debatable whether the underlying § 2255 motion states a valid

claim of the denial of a constitutional right” and—where the motion is denied on

procedural grounds—“(2) jurists of reason would find it debatable whether the

district court abused its discretion in denying the [reconsideration] motion.” United

States v. Winkles, 795 F.3d 1134, 1143 (9th Cir. 2015).1 A COA as to a Rule 59(e)

motion that is denied on procedural grounds cannot be granted unless both of these

conditions are met.

Here, the district court misapplied this test. To begin with, Lanphear’s Rule

59(e) motion was plainly dismissed on procedural grounds because the district court

declined to reach the merits of her ineffective assistance of counsel claim. Id. As

1 To be sure, Winkles was decided in the context of a denial of a Rule 60(b) motion, not a Rule 59(e) motion. 795 F.3d at 1135. However, its logic applies equally well to Rule 59(e) motions for reconsideration and, in fact, courts in this district have generally assumed that its standard applies to such motions. See, e.g., Richardson v. Frazier, No. 22-CV-1447 TWR (AHG), 2023 WL 2977295, at *2 (S.D. Cal. Apr. 17, 2023) (“To the extent Winkles applies to a Rule 59(e) motion to alter or amend judgment arising out of the dismissal of a § 2254 petition, the Court finds that Petitioner is not entitled to a certificate of appealability.”); Barger v. Director of Operations of CDCR, No. 1:17-cv01067-AWI-SAB-HC, 2018 WL 806180 at *27 (E.D. Cal. Feb. 9, 2018). 3 such, a COA on this motion was appropriate only if the district court found that both

of the prongs of the Winkles test were satisfied. That did not happen here. Despite

concluding that it was “virtually certain” that courts would agree with its decision to

deny the Rule 59(e) for lack of newly discovered evidence, the district court granted

Lanphear a COA. The district court’s judgment runs counter to Ninth Circuit

precedent and, accordingly, we find that the COA was improvidently granted.

APPEAL DISMISSED.

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