United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendant Danny
Blackmon's motion for copies without cost, motion to
compel, and motion for leave to amend and expand the record
to support his motion for an evidentiary hearing and
appointment of counsel. [DE 160, 166, 167].
August 13, 2003, the Grand Jury returned a five-count
indictment against Blackmon charging him with kidnapping and
sexual assault. After trial, a jury found Blackmon guilty of
kidnapping in violation of 18 U.S.C. § 1201. The Court
thereafter sentenced Blackmon to 365 months'
imprisonment, [DE 79], and Blackmon's conviction and
sentence were affirmed on direct appeal by the Fourth Circuit
Court of Appeals. [DE 86].
has filed motions pursuant to 28 U.S.C. § 2255 as well
as motions pursuant to Fed. R. Crim. P. 36. Those motions
have been denied or dismissed. [DE 101; 124; 129; 134; 151].
The court of appeals has affirmed this Court or dismissed
Blackmon's appeals. [DE 109; 157].
government has noted its opposition to the motion for copies.
[DE 165]. "[T]he Fourth Circuit requires indigent
defendants to show a 'particularized need'" for
requested documents prior to their being provided at
government expense. United States v. Holloman, 2013
U.S. Dist. LEXIS 99748, *3 (E.D. N.C. Jul. 17, 2013); see
also 28 U.S.C. § 753(f) (United States shall pay
the fee for transcript where action under § 2255 has
been certified not to be frivolous). An indigent defendant is
not entitled to a transcript at government expense in order
to "merely  comb the record in the hope of discovering
some flaw." United States v. Glass, 317 F.2d
200, 202 (4th Cir. 1963). Blackmon's justification for
receiving the requested documents at government expense is to
file a motion for post-conviction relief, which is
insufficient. Blackmon's motion requesting copies at no
cost is denied.
has also filed a motion for discovery under Rule 6 of the
Rules Governing § 2255 Proceedings. As there is no
§ 2255 motion currently pending, this motion is denied
has attached to his motion for discovery what appears to be a
motion for relief from judgment pursuant to Fed.R.Civ.P. 60.
[DE 166-1]. The clerk is DIRECTED to file this document as a
separate motion on the Court's docket.
Rule 60(b) affidavit, Blackmon contends that he is entitled
to relief under Rule 60(b)(2) based on newly discovered
evidence, and that all judgments previously entered in this
case are void under Rule 60(b)(4). Blackmon also argues he is
entitled to relief under Rule 60(b)(6). Blackmon seeks grant
of an evidentiary hearing and appointment of counsel as well
as discharge from his current conviction or an opportunity to
plead anew with a sentence of time served.
60(b) of the Federal Rules of Civil Procedure permits a court
to relieve a party from final judgment under six enumerated
circumstances, which include mistake or excusable neglect,
newly discovered evidence, fraud or misrepresentation,
judgment having become void, satisfaction of the judgment, or
any other reason that justifies relief. Fed.R.Civ.P.
Rule 60(b) applies to § 2255 proceedings, but only to
the extent that it is not inconsistent with applicable
statutory provisions and rules. Therefore, 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. A successive habeas petition may not be
filed in district court without preauthorization from a court
of appeals under § 2244(b)(3)(A). A Rule 60(b) motion
that challenges some defect in the ...