United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
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.
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.
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
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,
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].
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
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).
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.").
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).
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
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 ...