Mosley v. United States

          ORDER

          Robert J. Conrad, Jr., United States District Judge.

         THIS 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. No. 105).

         I. BACKGROUND

         In 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).

         In July 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).

         On July 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).

         Petitioner 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).

         While 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).

         On 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).

         Petitioner 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).

         II. DISCUSSION

         As 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).

         A. Petitioner does not qualify for relief under Rule 60(a).

         Rule 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 forge ...