United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
matter comes before the court on petitioner's motion to
reopen 28 U.S.C. § 2255 motion to vacate under Federal
Rules of Civil Procedure 57 and 60(b)(4), (6) (DE 235) and
supplemental motion for relief pursuant to Rule 60(b), (d)
(DE 238). Additionally, petitioner has filed a memorandum in
support which the court construes as a motion to take
judicial notice. (DE 236). For the reasons that follow, the
court denies petitioner's motions.
August 21, 2009, petitioner was convicted following trial by
jury of conspiracy to distribute and possess with intent to
distribute cocaine in the amount of more than 500 grams but
less than 5 kilograms, in violation of 21 U.S.C. § 846.
Petitioner was sentenced on January 4, 2010, to 324 months of
imprisonment. Petitioner appealed the conviction and
sentence, and the Fourth Circuit affirmed. United States
v. Foster, 406 Fed.Appx. 690 (4th Cir. 2010) (per
filed a motion to vacate his sentence pursuant to § 2255
on August 19, 2011, arguing ineffective assistance of
counsel, including the allegation that his trial attorney,
Mark Herring, failed to inform him as to the details of a
plea agreement offered by the government, which agreement
petitioner declined to enter into. (DE 150). Following an
evidentiary hearing and recommendation by the magistrate
judge to deny petitioner's motion, the court adopted the
recommendation of the magistrate judge and denied
petitioner's motion on May 22, 2013. (DE 193). Petitioner
appealed the denial, and the Fourth Circuit affirmed.
United States v. Foster, 544 Fed.Appx. 210 (4th Cir.
24, 2014, petitioner filed another motion to vacate his
sentence pursuant to § 2255, which the court dismissed
without prejudice for the petitioner to seek authorization to
file his second or successive § 2255 motion. (DE 205).
Thereafter, petitioner filed a motion to reduce sentence,
which the court granted on October 24, 2016, reducing
petitioner's sentence from 324 months to 262 months.
November 4, 2016, petitioner filed another motion to vacate
his sentence pursuant to § 2255, which the court
dismissed for lack of jurisdiction where the Fourth Circuit
had denied petitioner's application for authorization to
file a successive § 2255 motion. (DE 233).
August 31, 2017, petitioner filed the instant motion to
reopen § 2255 motion to vacate pursuant to Rule 57 and
60(b)(4), (6). (DE 235). On October 16, 2017, petitioner
filed a memorandum in support of his August 31, 2017 motion.
(DE236). On March 19, 2018, petitioner filed the instant
supplemental motion for relief pursuant to Rule 60(b), (d).
petitioner's filings, he argues 1) his trial attorney,
Mark Herring, committed fraud on the court when testifying to
the court during the above referenced evidentiary hearing; 2)
the court should take judicial notice that petitioner was
sentenced based on an amount of cocaine in excess of what the
jury found him guilty and that the court found petitioner
"guilty of missing elements of statutes in his
case"; and 3) the assistant United States attorneys
involved in the grand jury proceedings that originally
indicted petitioner committed fraud on the court by failing
to file oath of office and appointment affidavits.
Motion to Reopen
petitioner captions his first motion as a "motion to
reopen 28 U.S.C. § 2255 motion to vacate under Federal
Rules of Civil Procedure 57 and 60(b)(4), (6), " the
court construes petitioner's motion as a motion under
Federal Rule of Civil Procedure 60(b)." See Dove v.
Codesco, 569 F.2d 807, 809 (4th Cir. 1978). Rule 60(b)
authorizes the court to "relieve a party . . . from a
final judgment, order, or proceeding for .. . mistake,
inadvertence, surprise, or excusable neglect."
Fed.R.Civ.P. 60(b). Under Rule 60(b), a movant first must
demonstrate that the movant acted promptly, that the movant
has a meritorious claim or defense, and that the opposing
party will not suffer prejudice by having the judgment set
aside. See Nat'l Credit Union Admin. Bd. v.
Gray, 1 F.3d 262, 264 (4th Cir. 1993); Augusta
Fiberglass Coatings. Inc. v. Fodor Contracting Corp.,
843 F.2d 808, 811 (4th Cir. 1988) (per curiam). If those
three threshold conditions are met, the court then must
determine whether the movant has satisfied "one of the
six enumerated grounds for relief under Rule 60(b) "
Nat'l Credit Union Admin. Bd., 1 F.3d at 266.
Rule 60(b)'s threshold requirements is that the movant
demonstrate a meritorious claim or defense. Here, petitioner
essentially attempts to re-argue his contention that his
trial attorney did not fully inform his as to the
government's plea offer and additionally alleges his
trial attorney committed fraud on the court during the
evidentiary hearing previously held by the magistrate judge.
However, the only argument or evidence offered by petitioner
that his trial attorney committed fraud on the court is that
no plea agreement can be found on the court's PACER site,
which is short for Public Access to Court Electronic Records,
the electronic service that provides access to case and
docket information from federal courts, including this one.
(DE 235 at 9-10).
agreement not finalized is not required to be filed on PACER.
See Fed. R. Crim. P. 11(c)(2) ("The parties must
disclose the plea agreement in open court when the plea is
offered . . . .") (emphasis added). Thus, the court
finds petitioner has failed to demonstrate a meritorious