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McCall v. United States

United States District Court, W.D. North Carolina, Charlotte Division

May 29, 2018

HOWARD EDWARD McCALL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney Jr. Chief United States District Judge.

         THIS MATTER comes before the Court on Petitioner's Motion for Reconsideration (Doc. No. 9).

         I. BACKGROUND

         Petitioner 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).

         On July 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).

         Petitioner 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).

         Petitioner 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 Simmons.

         II. LEGAL STANDARDS

         Rule 60 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 ...

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