United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.
cause comes before the Court on a motion by petitioner
pursuant to Rule 60(b)(6) of the Federal Rules of Civil
Procedure requesting relief from final judgment of January
27, 2014, appointment of counsel, and to proceed in forma
pauperis. Petitioner has also filed a motion for recusal
of the undersigned. The government has responded by filing a
motion to dismiss for lack of jurisdiction.
Court incorporates by reference as if fully set forth herein
the factual and procedural background of this matter as
recited in its order of April 9, 2013. [DE 168]. Since the
Court's dismissal of petitioner's motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. §
2255 on the merits, petitioner has filed motions requesting
reconsideration of the Court's ruling and reassignment
from or recusal of the undersigned. See [DE 171,
177, 179]. In the instant motion, petitioner invokes
Fed.R.Civ.P. 60(b)(6) and asks the Court to set aside or
vacate its January 27, 2014, order denying his request to
re-open the judgment in this action and to allow him to
proceed with this case. Specifically, petitioner asks the
Court to reopen, set aside, and or vacate its final judgment,
arguing that the Court may have overlooked particular facts
or law of the instant case. Petitioner argues that he was in
poor health, penniless, incarcerated, and without
representation at the time default judgment was entered
against him, and that the Court in its order did not address
several important claims that were made in the original
§ 2255 motion. Petitioner asks that the judgment of
dismissal be vacated and for his § 2255 motion to
proceed to judgment on the merits.
filed the instant motions on July 6, 2017. It appears that
petitioner was released from the custody of the Bureau of
Prisons on February 2, 2016, see
https://www.bop.gov/inmateloc/ (last visited April 23, 2018)
and is now being held in the custody of the United States
Department of Homeland Security, Immigration and Customs
Enforcement for an immigration related matter in Texas. [DE
outset, and for those reasons expressed in its prior orders,
[DE 168; 177], the undersigned has concluded that recusal is
not warranted in this matter. Petitioner's request for
recusal is therefore DENIED. On review of petitioner's
Rule 60 motion, the Court concludes that it is without
jurisdiction to consider it.
styled as a motion under Rule 60(b), petitioner's motion
seeks that relief which would be granted by a successful
motion under § 2255. See United States v.
Winestock, 340 F.3d 200, 203 (4th Cir. 2003)
("longstanding practice of courts to classify pro
se pleadings from prisoners according to their contents,
without regard to their captions."). "[A Rule 60]
motion directly attacking the prisoner's conviction or
sentence will usually amount to a successive
application" as will "new legal arguments or
proffers of additional evidence." Id. at 207.
However, where the motion "seek[s] a remedy for some
defect in the collateral review process, " it is a true
Rule 60(b) motion and a district court may address the
contends that his motion is a true Rule 60 motion as it
attacks a defect in the prior § 2255 proceedings, namely
the Court's failure to address several important claims
that he made in his original § 2255 motion. These
include claims that petitioner's attorney was ineffective
for failing to pursue several critical issues before or
during trial, which petitioner details in the instant motion
to include filing a motion to suppress, a motion for
violation of speedy trial rights, and challenging
prosecutorial misconduct. [DE 191-1 at 19]. In support of his
motion, petitioner cites Peach v. United States, 468
F.3d 1269, 1271 (10th Cir. 2006).
to petitioner's assertion, the Court considered his
claims for ineffective assistance of counsel when ruling on
the underlying § 2255 motion, specifically claims that
counsel was ineffective for failing to file motions to
suppress and for violations of the Speedy Trial Act. [DE 168
at 5]. Although petitioner mentioned prosecutorial misconduct
several times throughout his lengthy § 2255 memorandum,
he did not make any claim of ineffective assistance related
to prosecutorial misconduct. Petitioner cannot now argue that
the failure to address a claim which was not before the Court
amounts to a defect in the integrity of the prior § 2255
proceeding. See Richardson v. United States, No.
2:96CR153, 2014 WL 3871225, at *3 (E.D. Va. Aug. 6, 2014).
absence of such a defect, the Court is constrained to
re-characterize the motion as a section 2255 petition. The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that a second or successive petition must be
certified by a panel of the appropriate court of appeals to
contain 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(h)(1)-(2). Absent
pre-filing authorization, a district court lacks jurisdiction
to consider a second or successive petition.
Winestock, 340 F.3d at 205.
instant motion attacks the same conviction and sentence as
was earlier challenged, it is properly construed as a second
or successive § 2255 petition, and the Court is without
jurisdiction to consider it in the absence of pre-filing
authorization. See, e.g., United States v. Downing,
372 Fed.Appx. 435, 436 (4th Cir. 2010) (unpublished).
Petitioner is not required to receive notice of the
Court's re-characterization of the motion where, as here,
it has been found to be second or successive. See United
States v. Emmanuel, 288 F.3d 644, 650 (4th Cir. 2002);
United States v. Brown, 132 Fed.Appx. 430, 431 (4th
Cir. 2005) (unpublished).
of the Rules Governing Section 2255 Cases provides that
"the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." A certificate of appealability shall not
issue absent "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). A
petitioner satisfies this standard by demonstrating that
reasonable jurists would find that an assessment of the
constitutional claims is debatable and any dispositive
procedural ruling dismissing such claims is also debatable.
Miller-El v. Cockrell,537 U.S. 322, 336-38 (2003);
Slack v. McDaniel,529 U.S. 473, 484 (2000);
Rose v. Lee,252 F.3d 676, 683 (4th ...