United States District Court, E.D. North Carolina, Southern Division
RODERICK D. STEVENS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on petitioner's motion under
Rule 60(b) of the Federal Rules of Civil Procedure. [DE 272].
The government has responded, [DE 275], and the matter is
ripe for disposition. For the reasons discussed below,
petitioner's motion is denied.
to a written plea agreement, petitioner Roderick Stevens pled
guilty on April 30, 2013, to one count of conspiracy to
commit wire fraud in violation of 18 U.S.C. § 1349
(Count One) and one count of aggravated identity theft and
aiding and abetting in violation of 18 U.S.C. §
1028A(a)(1)2 (Count Six). [DE 151]. On October 16, 2013,
Stevens was sentenced to 72 months on Count One and 24
months, to be served consecutively, on Count Six, followed by
five years of supervised release, and in addition to a
special assessment and restitution in the amount of $153,
084.21, joint and several with his co-defendants. [DE 151].
Petitioner and two co-defendants appealed, and their appeals
were consolidated. The Fourth Circuit affirmed in part and
dismissed in part in an unpublished opinion issued on August
6, 2014. [DE 182]. In the opinion, the court of appeals held,
among other things, that a co-defendant's argument that
the Court erred in two guidelines matters (calculating the
loss amount and applying the use of sophisticated means
enhancement) failed. Id. The court of appeals also
held that several claims were barred by appellate waivers.
August 25, 2015, petitioner filed a motion under 28 U.S.C.
§ 2255, seeking to vacate his conviction and sentence.
[DE 236]. In it, he alleged several claims of ineffective
assistance of counsel, including: (1) alleging counsel was
ineffective for permitting petitioner to plead guilty to
aggravated identity theft without a sufficient factual basis;
(2) alleging counsel was ineffective for failing to argue at
sentencing that the loss calculation and sophisticated means
enhancement were improper; (3) alleging counsel was
ineffective for failing to challenge guideline enhancements
for device-making equipment and number of victims; and (4)
alleging counsel was ineffective for failing to challenge the
restitution amount. [DE 236-1]. In response, the government
filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), [DE 244], which was granted by the Court
on July 26, 2016. [DE 264, 265].
December 5, 2016, petitioner filed the instant motion under
Rule 60(b) of the Federal Rules of Civil Procedure, seeking
to relief from the Court's judgment denying his previous
§ 2255 motion. In this current motion, petitioner
alleges that he moved for leave to amend his § 2255
motion on February 8, 2016, raising three additional claims:
(1) ineffective assistance of counsel based on defense
counsel's failure to inform him of the statutory maximum
for wire fraud (Count One); (2) ineffective assistance of
counsel, due to an excessive supervised release sentence
beyond the statutory maximum; and (3) miscalculation of his
advisory guidelines range. [DE 272 at 2]. Petitioner now
argues that he is entitled to relief because the Court's
order dismissing his § 2255 motion did not address these
60(b) permits a district court to "relieve a party or
its legal representative from a final judgment, order, or
proceeding for, " among other things, "(1) mistake,
inadvertence, or neglect; (2) newly discovered evidence that,
with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud ...
(4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or;" or "(6)
any other reason that justifies relief." Fed.R.Civ.P.
60(b). A Rule 60(b) movant must demonstrate as a threshold
matter "the existence of a meritorious claim or
defense." Square Constr. Co. v. Wash. Metro. Area
Transit Auth, 657 F.2d 68, 71 (4th Cir. 1981). A motion
under Rule 60(b) must also be timely filed and the opposing
party must not be unfairly prejudiced by having the judgment
set aside. Nat'l Credit Union Admin. Bd. v.
Gray, 1 F.3d 262, 264 (4th Cir. 1993) (citation
initial matter, the Court notes that the docket report in
this matter shows no motion for leave to amend was filed by
petitioner on February 8, 2016 or on any other date. Turning
to a threshold assessment of the merits of petitioner's
instant motion under Rule 60(b), the Court finds it to be
without a meritorious claim or defense. As to the first
claim, petitioner admits in the current motion that both
defense counsel and the Court advised him of the thirty-year
maximum penalty, [DE 272 at 1], and the statutory maximum was
listed in his plea agreement which he signed and affirmed
before this Court. [DE 117 at 3]. Therefore, petitioner
cannot demonstrate that counsel was ineffective for failing
to advise him of the statutory maximum. As to
petitioner's second claim, petitioner's five-year
supervised release was within the statutory maximum, thus
petitioner cannot demonstrate that counsel was ineffective
due to receiving a term of supervised release beyond the
maximum. 18 U.S.C. § 1349; 18 U.S.C. § 3583(b)(1).
As to petitioner's third claim, petitioner waived his
right to appeal his advisory guidelines calculation in his
plea agreement. [DE 117 at 1]. Moreover, challenges to
advisory guideline range calculations are not cognizable on
collateral review, including motions under § 2255.
United States v. Newbold, 791 F.3d 455, 459 (4th
Cir. 2015) (discussing United States v. Foote, 784
F.3d 931, 932-33 (4th Cir. 2015).
these reasons, petitioner cannot demonstrate a meritorious
claim or defense warranting relief from the Court's
judgment on his prior § 2255 motion and his motion
should be denied.
for the foregoing reasons, respondent's ...