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 motion
pursuant to Fed.R.Civ.P. 60(b) to reopen the § 2255
proceedings. Also before the Court is petitioner's motion
for leave to proceed in forma pauperis. The
government has responded to the substantive motion,
petitioner has replied, and the motions are ripe for ruling.
was sentenced by this Court on December 17, 1999, to a term
of 330 months' imprisonment after a jury convicted her of
conspiracy to distribute controlled substances under 21
U.S.C. § 846, distribution of controlled substances
under 21 U.S.C. § 841, and aiding and abetting the same
under 18 U.S.C. § 2. [DE 55]. Petitioner appealed, and
the court of appeals affirmed petitioner's conviction and
sentence. [DE 56]. On April 8, 2002, petitioner filed a
motion to vacate her sentence under 28 U.S.C. § 2255
arguing that she received the ineffective assistance of
counsel, that her relevant conduct exceeded the statutory
amount, that she was receiving cruel and harsh treatment, and
that she was eligible for but did not receive the safety
valve. [DE 58]. The Court granted the government's motion
for summary judgment and dismissed petitioner's motion to
vacate. [DE 64]. Petitioner's appeal of that order was
dismissed by the court of appeals. [DE 69]. Petitioner
thereafter filed a motion for reduction of sentence and a
motion for reconsideration of sentence which were dismissed
as second or successive § 2255 petitions. [DE 74 &
77]. After several other attempts to reduce her sentence were
denied, petitioner again filed a motion pursuant to 28 U.S.C.
§ 2255, which was dismissed as second or successive. [DE
February 21, 2017, petitioner filed the instant motion for
leave to proceed in forma pauperis and motion under
Rule 60(b) to reopen § 2255 proceedings. In her
substantive motion, petitioner asks that the Court reduce her
sentence on each count to 220 months' imprisonment and to
run each sentence concurrently; doing so would result in
petitioner's immediate release from prison. The basis for
her motion is what petitioner has identified as the
Holloway doctrine, which derives from a case in the
Eastern District of New York wherein the court, with the
concurrence and consent of the Office of the United States
Attorney, vacated two of Holloway's convictions after
Holloway moved to reopen his § 2255 proceedings.
United States v. Holloway, 68 F.Supp.3d 310, 311
is not required to pay the filing fee in order to file a
motion under Rule 60(b) or 28 U.S.C. § 2255, and her
motion for leave to proceed in forma pauperis is
denied as moot. Rule 60(b) of the Federal Rules of Civil
Procedure permits a court to relieve a party from final
judgment under six enumerated circumstances, which include
mistake or excusable neglect, newly discovered evidence,
fraud or misrepresentation, judgment having become void,
satisfaction of the judgment, or any other reason that
justifies relief. Fed.R.Civ.P. 60(b)(1)-(6).
Rule 60(b) applies to § 2255 proceedings, but only to
the extent that it is not inconsistent with applicable
statutory provisions and rules. Therefore, a Rule 60(b)
motion in a habeas proceeding that attacks the substance of
the federal court's resolution of a claim on the merits
is not a true Rule 60(b) motion, but rather a successive
habeas petition. A successive habeas petition may not be
filed in district court without preauthorization from a court
of appeals under § 2244(b)(3)(A). A Rule 60(b) motion
that challenges some defect in the integrity of the federal
habeas proceedings, however, is a true Rule 60(b) motion, and
is not subject to the preauthorization requirement.
United States v. McRae, 793 F.3d 392, 397 (4th Cir.
2015) (internal alterations, quotations, and citations
current motion, though denominated as a motion under Rule
60(b), plainly attacks the substance of her
sentence and raises no challenge to the integrity of her
habeas proceedings. Her motion is thus properly
re-characterized as a motion under 28 U.S.C. § 2255 and
is second or successive. As the court of appeals has not
authorized petitioner to file a second or successive §
2255 petition, this Court is without jurisdiction to consider
it and it must be dismissed. See United States v.
Winestock, 340 F.3d 200, 206-07 (4th Cir. 2003) ("a
motion directly attacking the prisoner's conviction or
sentence will usually amount to a successive
application" as will "new legal arguments or
proffers of additional evidence"); 28 U.S.C. §
2255(h) (appropriate court of appeals must certify a second
or successive motion for filing); Fed.R.Civ.P. 12(b)(1).
Petitioner need not be provided with notice of the
Court's recharacterization of her motion as it has been
construed as second or successive under § 2255(h).
See United States v. Emmanuel, 288 F.3d 644, 650
(4th Cir. 2002); United States v. Brown, 132
Fed.App'x 430, 431 (4th Cir. 2005) (unpublished).
as the government has noted in its response to
petitioner's Holloway doctrine argument, there
were "no legal avenues or bases for vacating"
Holloway's convictions absent agreement by the government
to such relief. Holloway, 68 F.Supp.3d at 314. The
government here has flatly stated that it does not agree to
the relief provided in Holloway for petitioner.
Accordingly, even if the Court were inclined to revisit
petitioner's sentence under some circumstance, it is
without the authority to do so in this posture.
for the foregoing reasons, petitioner's motion to proceed
in forma pauperis [DE 123] is DENIED AS MOOT.
Petitioner's Rule 60(b) motion [DE 124] is DISMISSED. As
reasonable jurists would not find this Court's dismissal
of petitioner's motion debatable, a certificate of
appealability is DENIED. Miller-El v. Cockrell, 537
U.S. 322, 336-38 ...