United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motions
pursuant to Rule 60(b) and 15(c) of the Federal Rules of
Civil Procedure. The government has responded in opposition
to the motions, and the matters are ripe for ruling.
Terry, pled guilty on September 17, 2012, pursuant to a
written plea agreement to one count of attempt to distribute
28 grams or more of cocaine base (crack) in violation of 21
U.S.C. § 841 (a)(1) and one count of using and carrying
a firearm during a crime of violence in violation of 18
U.S.C. § 924(c). [DE 28]. On February 7, 2013, Terry was
sentenced to 235 months on the narcotics charge followed by a
consecutive 60 months on the firearm charge. [DE 36]. This
resulted in a total term of 295 months' imprisonment.
Terry's direct appeal of his conviction and sentence was
dismissed by the court of appeals on January 15, 2014. [DE
11, 2015, this Court dismissed a motion by Terry under 28
U.S.C. § 2255 and denied a certificate of appealability.
[DE 72]. This Court subsequently denied two motions for
reconsideration filed by Terry. [DE 75, 78]. On November 8,
2016, the court of appeals denied Terry's petition for
authorization to file a second or successive § 2255
motion based on Johnson v. United States, 135 S.Ct.
2551 (2015), and Welch v. United States, 136 S.Ct.
1257 (2016), finding that Johnson entitled Terry to
no relief. [DE 85].
17, 2017, Terry filed a motion pursuant to Fed.R.Civ.P.
60(b)(3) and (6), seeking reconsideration and vacatur of his
sentence based on misrepresentation by counsel, fraud and
misconduct by other party, and any other reason which
justifies relief. Terry contends that he is actually innocent
of possession of a firearm under 18 U.S.C. § 924(c) and
that his counsel and the government engaged in misconduct,
perjury, and fraud. In his motion to amend under Rule
15(c)(1), Terry seeks to add documentation as an exhibit to
his statement of facts contained in his Rule 60(b) motion.
outset, the Court grants Terry's motion to amend in order
to add documentation to his Rule 60(b) motion. 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.
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
omitted). Although styled as a Rule 60(b) motion, as it seeks
reconsideration of the ruling on his prior § 2255 motion
and vacatur of his sentence and resentencing, Terry's
motion is in fact a successive motion under 28 U.S.C. §
2255. Terry has not identified any defect in the integrity of
his prior habeas proceeding, but rather makes arguments
regarding his conviction and sentence which would have been
known to him at the time he filed his first § 2255
motion. Accordingly, the Court will construe Terry's Rule
60(b) motion as one under 28 U.S.C. § 2255. See
United States v. Winestock, 340 F.3d 200, 207 (4th Cir.
2003) (in determining 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
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 from the
court of appeals, this Court lacks jurisdiction to consider a
second or successive petition. See Winestock, 340
F.3d at 205.
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 circumstances 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); United
States v. Brown, 132 Fed.Appx. 430, 431 (4th Cir. 2005)
(unpublished). As Terry has filed a prior § 2255 motion
which was dismissed on the merits, the Court need not notify
him in advance of its recharacterization. The motion filed
under Rule 60(b) is denied without prejudice to allow Terry
to seek pre-filing authorization from the court of appeals.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell,537 U.S. 322, 336-38 (2003);
Slack v. McDaniel,529 U.S. 473, 484 (2000);
Rose v. Lee,252 F.3d 676, 683-84 (4th Cir. 2001).
As reasonable ...