United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
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.
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).
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 §
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. On July 26, 2016,
the Fourth Circuit granted petitioner authorization to file a
second or successive § 2255 motion.
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
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.
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.
November 13, 2017, petitioner filed the instant motion to
reopen and alter judgment pursuant to Rule 60 and motion to
Motion to Reopen
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.
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 . . . ...