United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Jr. Chief United States District Judge.
MATTER comes before the Court on Petitioner's
Motion for Reconsideration (Doc. No. 9).
filed a pro se Motion to Vacate that was docketed in
the instant civil case pursuant to 28 U.S.C. § 2255,
alternatively pursuant to 28 U.S.C. § 2241, on March 29,
2012, (Doc. No. 1), arguing that his sentence is illegal
pursuant to United States v. Simmons, 649 F.3d 237
(4th Cir. 2011). The Court dismissed the §
2255 petition as untimely, and denied the § 2241
petition, on November 30, 2012. McCall v. United
States, 2012 WL 5995535 (W.D. N.C. Nov. 30, 2012).
Petitioner moved for reconsideration, which the Court denied
on December 27, 2012. The Fourth Circuit Court of Appeals
denied a certificate of appealability and dismissed
Petitioner's appeal. United States v. McCall,
527 Fed.Appx. 262 (4th Cir. 2013).
22, 2014, Petitioner filed a second § 2255 proceeding
that was opened as a new civil case, number 3:14-cv-416-FDW.
The Court dismissed it as an unauthorized successive §
2255 on July 30, 2014. McCall v. United States, 2014
WL 3749230 (W.D. N.C. July 30, 2014).
sought leave to file a second or successive § 2255
petition which the Fourth Circuit denied on August 15, 2014.
(3:05-cr-104, Doc. No. 822).
filed the instant Motion for Reconsideration in the instant
case on October 11, 2017, asking the Court to reconsider its
December 27, 2012, Order denying the § 2255 relief under
provides permits a court to correct orders and provide relief
from judgment under the following circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it ...