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Barefoot v. United States

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

July 20, 2017




         This cause comes before the Court on petitioner's motion pursuant to Rules 59 and 60(b)(3) and (6) of the Federal Rules of Civil Procedure. The government has responded and the matter is ripe for ruling. For the reasons that follow, petitioner's motion is denied.


         The Court incorporates by reference as if fully set forth herein the factual and procedural history of this matter as set out in its order dismissing petitioner's motion under 28 U.S.C. § 2255. [DE 456]. In its order dismissing the § 2255 motion, the Court determined that a majority of petitioner's claims were procedurally barred for failure to raise them on direct appeal. The Court further found that petitioner's appellate counsel was not ineffective for failing to raise issues identified by petitioner on appeal as petitioner had failed to demonstrate a reasonable probability that he would have prevailed but for appellate counsel's failure to raise the issue. See Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Rangel, 781 F.3d 736, 745 (4th Cir. 2015). The Court held that as to those claims which were not procedurally defaulted, petitioner had failed to state a plausible claim for relief or summary judgment in favor of respondent was appropriate. In sum, the Court held that it had reviewed the record and petitioner's voluminous and at times repetitive filings and could find no basis upon which to allow a collateral attack of petitioner's conviction or sentence. [DE 456].


         Rule 59(e) permits the Court to alter or amend its judgment on motion of a party filed within twenty-eight days of the entry of judgment. Fed.R.Civ.P. 59(e).[1] The decision whether to amend or alter a judgment pursuant to Rule 59(e) is within the sound discretion of the district court. See Hughes v. Bedsole, 48 F.3d 1376, 1382 (4th Cir. 1995). The Fourth Circuit has identified three circumstances that justify altering or amending a judgment: (1) to accommodate an intervening change in the law; (2) to account for new evidence which was unavailable when the court made its decision; and (3) to correct a clear error of law or prevent manifest injustice. Bogart v. Chappell, 396 F.3d 548, 555 (4th Cir. 2005).

         Rule 60(b)(3) permits a court to relieve a party from final judgment on the basis of fraud, misrepresentation, or misconduct by an opposing party. Fed.R.Civ.P. 60(b)(3). Rule 60(b)(6) permits a court to relieve a party from final judgment for any other reason not specifically provided by the rule which justifies relief. Fed.R.Civ.P. 60(b)(6). Relief under Rule 60(b)(6) is limited to extraordinary circumstances. Aikens v. Ingram, 652 F.3d 496, 500 (4th Cir. 2011) (en banc). Moreover, 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 omitted).

         In his post-judgment motion, petitioner argues that the Court erred in finding his claims procedurally defaulted because petitioner had raised these issues in pro se supplemental briefs. Petitioner further argues that his jury and prosecution were tainted by racial bias. The government agrees that the procedural default discussion of the Court's order should be revisited in light of petitioner's filing of pro se supplemental briefs in the court of appeals. The government contends that petitioner's second argument for relief from judgment related to racial bias has been previously considered and rejected by the Court.

         Although the Court recognized in its order dismissing the § 2255 motion that petitioner had filed informal briefs in the court of appeals and that the court of appeals had accepted and considered petitioner's briefs, it did not expressly state that, as to any claim which had been presented to the court of appeals and considered by it, petitioner would be barred from attempting to recast those issues before this Court under the guise of collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976); see also United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013). The court of appeals fully considered petitioner's pro se supplemental briefs and exhibits, and although it did not expressly address in its opinion petitioner's arguments raised therein, it implicitly rejected those arguments by failing to adopt them. United States v. Barefoot, 754 F.3d 226, 233 n.3 (4th Cir. 2014). Accordingly, those arguments, though not procedurally barred under Bousely, could not be reargued in petitioner's habeas proceeding. United States v. Under, 552 F.3d 391, 397 (4th Cir. 2009) (well-established that § 2255 motion cannot be used to raise questions previously considered on direct appeal) (citation omitted).

         As to petitioner's second argument, the Court has been presented with no basis to reconsider its judgment regarding petitioner's claims of racial bias during trial as petitioner has not identified any new controlling law or new evidence and has not demonstrated any clear error by the Court regarding this claim. Although petitioner has filed his motion under Rule 60(b)(3) and (b)(6), he has not identified any fraud or misconduct on behalf of the government in the § 2255 proceedings or any other reason which would justify relief under Rule 60(b).

         Insofar as petitioner's racial bias claim could be construed as an attack on the substance of this Court's resolution of petitioner's § 2255 motion, it is properly recharacterized as a second or successive motion under 28 U.S.C. § 2255(h) and the Court is without jurisdiction to consider it absent prefiling authorization from the court of appeals. See United States v. Winestock, 340 F.3d 200, 206-07; see also United States v. Brown, 132 Fed.App'x 430, 431 (4th Cir. 2005) (unpublished) (petitioner need not receive notice of the Court's re-characterization as the motion has been determined to be second or successive).

         Certificate ...

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