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Cannady v. United States

United States District Court, E.D. North Carolina, Western Division

May 15, 2017




         This cause comes before the Court on petitioner's motions under Rules 60(b) and 52(b) of the Federal Rules of Civil Procedure. [DE 226, 227]. The government has responded, [DE 235], and the matter is ripe for disposition. Petitioner has also filed motions for leave to file [DE 231, 232]. For the reasons discussed below, petitioner's motions are denied.


         Petitioner pled guilty, pursuant to a written plea agreement, on May 5, 1997. [DE 40]. He was sentenced on December 3, 1997, for one count of conspiracy to manufacture, distribute, and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. Petitioner was sentenced to 144 months' imprisonment and five years' supervised release. [DE 92]. Petitioner did not appeal.

         On November 9, 1998, the government moved for a reduction in petitioner's sentence. [DE 108]. As a result, petitioner was resentenced to 108 months. [DE 117]. Petitioner was eventually released from prison and put on supervised release. However, in April 2005, this Court granted a motion to revoke petitioner's supervised release and sentenced petitioner to 30 months' imprisonment. [DE 158]. Petitioner was released on May 30, 2006. [DE 89 of United States v. Cannady, No. 5:08-CR-258-D-l, hereinafter "Cannady II").

         On November 17, 2008, petitioner pled guilty before Chief Judge James C. Dever to possession with intent to distribute 50 grams of cocaine base (crack) and a quantity of oxycodone, in violation of 21 U.S.C. § 841(a)(1). [Cannady II, DE 16, 17]. On March 25, 2009, Judge Dever sentenced petitioner to 384 months' imprisonment and five years of supervised release. [DE 25]. Petitioner challenged this judgment on appeal and collateral review but has not prevailed. [DE 37, 57, 64].

         On May 6, 2015 petitioner filed what was originally a motion pursuant to Federal Rule of Civil Procedure 60(b). [DE 211]. In June 2015, the Court notified petitioner of its intent to construe the motion as one for relief under 28 U.S.C. § 2255, as it directly attacked petitioner's conviction. See United States v. -Winestock, 340 F.3d 200, 207 (4th Cir. 2003); [DE 199]. Petitioner did not respond. The Court thus considered the motion as one brought under § 2255, and thereafter dismissed the motion for lack of subject matter jurisdiction because petitioner was no longer in custody for the sentence he was challenging. [DE 229].

         On July 25, 2016, petitioner filed the instant motions under Rules 60(b) and 52(b). [DE 226, 227]. Through these motions, petitioner again challenges his conviction and sentence. The government responded, arguing that they should be denied as the Court is without jurisdiction to review them. [DE 235]. Petitioner also filed two motions for leave to file, one which challenges forfeiture of funds [DE 231] and one which seeking to raise a Rule 60(b) actual innocence claim. [DE 232].


         The Antiterrorism and Effective Death Penalty Act of 1996 provides that a second or successive § 2255 petition must be certified by a panel of the appropriate court of appeals to contain either "newly discovered evidence ... or a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(1)-(2). Absent pre-filing authorization, this Court lacks jurisdiction to consider a second or successive petition. United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).

         The relief which defendant seeks in his three motions made under Rules 52 and 60 is that which would be provided by a successful motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner has previously filed a motion pursuant to 28 U.S.C. § 2255 which was denied. Therefore, these additional motions can be properly construed as second or successive § 2255 motions. See Winestock, 340 F.3d at 207 (In determing whether a motion should be construed as one under § 2255. "[t]here may be no infallible test. . . but a relatively straightforward guide is that a motion directly attacking the prisoner's conviction or sentence will usually amount to a successive application.").

         Generally, a court must notify a petitioner before recharacterizing a motion as being subject to § 2255's requirements. Castro v. United States, 540 U.S. 375 (2003). However, this "notice before recharacterization" requirement does not apply to situations in which a petitioner has already had a previous § 2255 motion dismissed on the merits. See United States v. Emmanuel, 288 F.3d 644, 650 (4th Cir. 2002). Because these motions are together construed as a second § 2255 petition, and are therefore procedurally barred, notice to petitioner is not required and they are properly denied. See also United States v. Brown, 132 F.App'x 430, 431 (4th Cir. 2005) (unpublished).

         In the alternative, assuming that the motions are not procedurally barred, the Court is nonetheless without jurisdiction to review these motions as petitioner is no longer in custody for the sentences is challenging. In this case, the pertinent statute states:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral ...

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