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Gibbons v. United States

United States District Court, W.D. North Carolina, Charlotte Division

September 18, 2017

SUDAMA LEROY GIBBONS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          ROBERT J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Petitioner's “Motion for Relief from Judgment or Order Under Rule 60(b)(6).” (Doc. No. 28).

         I. BACKGROUND

         Petitioner Sudama Gibbons filed a pro se motion to vacate pursuant to 28 U.S.C. § 2255 on March 16, 2012, (Doc. No. 1), arguing that he lacked the predicate convictions to support enhancements under 21 U.S.C. § 851 and United States Sentencing Guidelines § 4B1.1. Specifically, he argued that his prior North Carolina conviction for possession with intent to sell or deliver cocaine was only punishable by up to eight to 10 months' imprisonment, and therefore, did not support his enhanced sentence pursuant to Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). He argued that the motion to vacate was timely filed within one year of the Fourth Circuit's opinion in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), pursuant to 28 U.S.C. § 2255(f)(2), (f)(3), and equitable tolling. He asked the Court to vacate his judgment and resentence him without the § 851 or § 4B1.1 enhancements. The Federal Defender appeared on Petitioner's behalf, adopted his pro se motion to vacate, and filed a supplemental memorandum arguing he should be granted Simmons relief pursuant to § 2255, and alternatively, pursuant to 28 U.S.C. § 2241, 28 U.S.C. § 1651(a) coram nobis, or writ of audita querela. (Doc. No. 7). The Court granted the Government's motion to stay the action pending the Fourth Circuit's rehearing of Whiteside v. United States, 748 F.3d 541 (4th Cir. 2014), and lifted the stay when Whiteside was denied. The United States filed a Response arguing that the § 2255 motion to vacate was time-barred. (Doc. No. 22).

         The Court denied the § 2255 motion to vacate on March 30, 2015, because: the § 2255 motion to vacate is untimely and no exception applies; relief is unavailable pursuant to § 2241 because the savings clause does not apply to claims of actual innocence at sentencing; coram nobis does not apply because Petitioner is in custody; and audita querela does not apply because other remedies are available. (Doc. No. 24).

         Counsel did not file a notice of appeal. However, Petitioner filed a pro se reply on April 22, 2015, and a supplemental reply on April 29, 2015, after the Clerk's judgment was entered. (Doc. Nos. 25, 26, 27).

         Petitioner filed the instant pro se “Motion for Relief from Judgment or Order Under Rule 60(b)(6)” on June 8, 2017. (Doc. No. 28). He argues that counsel failed to file a reply addressing the § 851 Simmons claims or inform him when the § 2255 motion to vacate was dismissed. Petitioner found out about the dismissal after he filed his pro se replies more than a month after the fact. Petitioner tried to contact his attorney and a secretary told him that an appeal would be filed, however, this was never done and Petitioner was essentially abandoned by counsel. Petitioner asks the Court to relieve him of the judgment dismissing his § 2255 motion to vacate and order the United States to respond to the timeliness and merits of his § 851 Simmons claims. He argues that his Rule 60(b)(6) motion was timely filed within 60 days after the Middle District of North Carolina issued its opinion in Core v. United States, 2017 WL 1608714 (M.D. N.C. April 28, 2017), in which the Government conceded, and the Middle District granted, a motion to vacate raising the same § 851 Simmons claim as Petitioner. He argues that the outcome of his § 2255 proceeding would have different but for counsel's gross negligence, and that the Government's recent concessions of error and Middle District's Core decision are changed circumstances that warrant relief from judgment.

         II. LEGAL STANDARDS

         Rule 60 provides permits a court to correct orders and provide relief from judgment under the following circumstances:

(1) mistake, inadvertence, surprise, or excusable 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 (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(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 ...

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