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Nixon v. United States

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

April 20, 2018

MUSHULLA SALEEM NIXON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUSE W. FLANAGAN, UNITED STATES DISTRICT JUDGE.

         This matter is before the court on petitioner's motion to reopen and alter judgement pursuant to Federal Rule of Civil Procedure 60(a), (b)(6) and motion to appoint counsel. (DE 180). Additionally, petitioner has filed a motion for copy of this plea agreement. (DE 192). The issues raised are ripe for ruling. For the reasons that follow, the court denies petitioner's motion to reopen and alter judgment, denies his motion to appoint counsel, and grants his motions for copy of his plea agreement.

         BACKGROUND

         On May 5, 2008, petitioner pleaded guilty, pursuant to a written plea agreement, to conspiracy to distribute and possess with the intent to distribute more than 50 grams of cocaine base (crack), in violation of 21 U.S.C. § 846. On October 14, 2008, this court sentenced petitioner to 277 months imprisonment. The Court of Appeals for the Fourth Circuit affirmed petitioner's conviction. See United States v. Nixon, 352 Fed.Appx. 786 (4th Cir. 2009).

         On August 16, 2010, petitioner filed his first motion to vacate pursuant to 28 U.S.C. § 2255. The motion was subsequently denied. On April 4, 2014, petitioner filed his second § 2255 motion. The motion was dismissed without prejudice to petitioner to seek pre-filing authorization from the Fourth Circuit to file his second or successive § 2255 motion.

         On June 26, 2016, petitioner's appointed counsel filed another§ 2255 motion, arguing that in light of the Supreme Court's decision in Johnson, he was improperly sentenced as a career offender.[1] On July 26, 2016, the Fourth Circuit granted petitioner authorization to file a second or successive § 2255 motion.

         On August 2, 2016, this court stayed the case pending the Supreme Court's final decision in Beckles v. United States, 137 S.Ct. 886 (2017). On March 14, 2017, this court lifted the stay and ordered petitioner to show cause why his § 2255 motion should not be dismissed in light of Beckles v. United States, 137 S.Ct. 886 (2017). On March 22, 2017, petitioner's counsel filed a notice of voluntary dismissal.

         On March 27, 2017, petitioner filed a motion to reopen his § 2255 motion, which the court granted, concluding that the voluntary dismissal of petitioner's § 2255 motion was the result of petitioner's inability to communicate with his appointed counsel. On April 17, 2017, petitioner filed a supplement to his § 2255 motion, arguing that the career offender enhancement was erroneously applied under United States v. Davis, 720 F.3d 215 (4th Cir. 2013), because several of his prior convictions were consolidated into one sentence under North Carolina law, and therefore, he did not have the two predicate convictions necessary for career offender designation. On May 17, 2017, the government filed its motion to dismiss.

         On July 11, 2017, the court denied petitioner's motion to vacate, dismissed petitioner's supplement, and granted the government's motion to dismiss, finding that 1) the Supreme Court's decision in Beckles precluded prisoner from relying on Johnson's reasoning to attack his designation as a career offender and 2) petitioner was unable to challenge his career status under Davis because his claims were untimely and procedurally defaulted. Thereafter, petitioner filed a motion for summary judgment and motion for reconsideration, which the court dismissed on November 8, 2017, classifying petitioner's pleadings as second or successive petitions to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, which petitioner cannot bring without prior authorization from the Fourth Circuit.

         On November 13, 2017, petitioner filed the instant motion to reopen and alter judgment pursuant to Rule 60 and motion to appoint counsel.

         COURT'S DISCUSSION

         A. Motion to Reopen

         The court “must classify pro se pleadings from prisoners according to their contents, without regard to their captions.” United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003). Petitioner's instant motion, although labeled a “motion to reopen, ” attacks his underlying conviction; thus, petitioner's motion is a second or successive petition to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. See Gonzales v. Crosby, 545 U.S. 524, 532 (2005); United States v. McRae, 793 F.3d 392, 397 (4th Cir. July 13, 2015) (“[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.”) (internal quotation omitted). Such a petition may not be brought prior to receiving certification from the United States Court of Appeals for the Fourth Circuit that the new petition contains 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; see Winestock, 340 F.3d at 205. Plaintiff presents no such certification. Accordingly, petitioner's § 2255 claim must be dismissed.

         Even if petitioner's claims were not second or successive, petitioner's claims fail on the merits. Petitioner again argues before the court that his prior convictions do not qualify under the sentencing guidelines in order for petitioner to be designated as a career offender and petitioner's sentence to be enhanced. (See DE 180 at 1 (“petitioner's 2007, prior state convictions, did not qualify as ‘sentences for at least two prior felonies at the time of sentencing . . . ...


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