United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge.
MATTER is before the Court on Petitioner's
“Motion to Reopen 2255 Proceedings Pursuant to Rule
60(b) of the Federal Rules of Civil Procedure, ” (Doc.
No. 98); on Petitioner's “Motion to Reopen 2255
Proceedings, ” (Doc. No. 99); Petitioner's
“Motion for Discovery, ” (Doc. Nos. 101, 102);
and on the Government's “Motion to Amend/Correct
Response to Petitioner's Motion to Reopen, ” (Doc.
2012, Petitioner entered a straight-up guilty plea to being a
felon in possession of a firearm. (Crim. No. 3:11cr336, Doc.
No. 16: Acceptance and Entry of Guilty Plea). This Court
varied downward and imposed a sentence of 100 months of
imprisonment. (Id., Doc. Nos. 67-68: Judgment and
Statement of Reasons). Petitioner timely appealed, arguing
only that he had received ineffective assistance of counsel.
The Fourth Circuit affirmed, finding that the record did not
conclusively establish ineffective assistance. United
States v. Mosley, 552 F. App'x 267, 268 (4th Cir.
2014, Petitioner filed his underlying motion to vacate
pursuant to 28 U.S.C. § 2255, raising seven claims.
(Civ. Doc. No. 1). He subsequently filed numerous additional
motions, memoranda, and documents in this proceeding, some of
which included additional claims. On July 13, 2017, this
Court denied Petitioner's motion to vacate, denied six
outstanding motions, and granted six outstanding motions.
(Civ. Doc. No. 90 at 34).
27, 2017, Petitioner filed a motion to alter or amend the
judgment pursuant to Federal Rules of Civil Procedure 59(e)
and 60(b)(6). (Civ. Doc. No. 92). In the motion, Petitioner
asserted, inter alia, that this Court had erred in stating
that there was no evidence that Petitioner had been
misadvised as to his status as an armed career criminal and
that there was no evidence that any plea agreement had been
extended to Petitioner; that appellate counsel should have
argued that this Court impermissibly participated in his plea
discussions; and that the Government had withheld ATF records
and a copy of a statement from his daughter. (Id. at
15-17, 21-24). However, Petitioner moved to withdraw this
motion three weeks later, and he instead filed a notice of
appeal seeking a certificate of appealability (COA) from the
Fourth Circuit. (Civ. Doc. Nos. 94, 95).
filed an informal brief and a supplemental informal brief in
the Fourth Circuit. Mosley v. United States, No.
17-7129 (4th Cir. 2017), ECF Nos. 6-1, 11. He argued that:
(1) this Court erred by failing to hold an evidentiary
hearing to resolve his claims; (2) the evidence was
insufficient to enhance his sentence; (3) this Court erred by
failing to consider whether Judge Cogburn improperly
participated in plea negotiations; (4) counsel was
ineffective for failing to adequately plea bargain on his
behalf; (5) appellate counsel was ineffective for failing to
raise a claim of vindictive prosecution; (6) his guilty plea
was unknowing and involuntary and he was deprived of the
effective assistance of counsel due to the government's
failure to disclose evidence (citing evidence regarding
gunshot residue analysis, evidence from the ATF, and a
statement from his daughter); (7) counsel's advice
regarding whether he was subject to a sentence enhancement
was ineffective; (8) an evidentiary hearing should have been
held to determine whether there was a plea offer and whether
counsel provided ineffective assistance in failing to
adequately communicate this offer to Petitioner; and (9) the
Government failed to disclose gunshot residue analysis, video
surveillance, ATF records, and witness statements, in
violation of Brady v. Maryland, 373 U.S. 83, 87
(1963). (Id., ECF No. 11).
his application for a COA was pending, Petitioner filed the
present motion to reopen on October 10, 2017, citing Federal
Rule of Civil Procedure 60. (Civ. Doc. No. 98 at 1). Two
months later, he filed a supplement to his motion to reopen,
seeking to add a claim that this Court failed to adjudicate
the claim that his appellate attorney provided ineffective
assistance by failing to argue on appeal that this Court had
improperly participated in plea negotiations. (Civ. Doc. No.
99 at 4-5).
January 8, 2018, this Court ordered the Government to file a
brief response to these motions. (Civ. Doc. No. 100).
Petitioner subsequently filed a motion for discovery. (Civ.
Doc. Nos. 101-102). On February 1, 2018, the Fourth Circuit
granted Petitioner's motion to file a supplemental
informal brief, but denied Petitioner's request for a
COA, finding that he had not made a substantial showing of
the denial of a constitutional right. (Civ. Doc. No. 103).
The Government filed its brief on February 7, 2018, and its
pending motion to amend/correct response on February 8, 2018.
(Doc. Nos. 104, 105). Petitioner filed a Reply on February
21, 2018. See (Doc. No. 108).
seeks to reopen the denial of his motion to vacate, citing
Federal Rule of Civil Procedure 60(a), (b)(1), (b)(4), and
(b)(6). Petitioner bases his motion on alleged factual errors
by the Court. In particular, he contends that this Court
erred by stating: (1) that there was no evidence that
Petitioner was misadvised as to his plea; (2) there was no
evidence that a plea offer was made to Petitioner; (3) that
it was not clear that any evidence had been withheld from
Petitioner; (4) that he had not presented competent evidence
that any statement from his daughter had been withheld from
him; and (5) that the Government had filed a responsive
pleading to all of Petitioner's claims. (Civ. Doc. No. 98
at 4-13). In his motion to supplement the motion to reopen,
Petitioner argues that this Court failed to address his claim
that appellate counsel provided ineffective assistance by not
arguing on direct appeal that Judge Cogburn had improperly
participated in plea negotiations. (Civ. Doc. No. 99 at 4-5).
noted, in his various motions pending before the Court,
Petitioner has moved to reopen his 28 U.S.C. § 2255
proceedings, citing Federal Rule of Civil Procedure 60(a) and
(b)(1), (4), (6).
Petitioner does not qualify for relief under Rule 60(a).
60(a) provides relief for corrections based on clerical
mistakes, oversights, or omissions. Such mistakes may be
ministerial in nature, or may be necessary to clarify an
order to reflect the court's original intent, where some
ambiguity exists. See Sartin v. McNair Law Firm PA,
756 F.3d 259, 265-66 (4th Cir. 2014). Petitioner has not
shown that the alleged errors by this Court qualify as the
type of ministerial mistakes or clarifications of ambiguity
that may be corrected under Rule 60(a). Rather, he seeks to