United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER comes before the Court on Petitioner's
Motion for Reconsideration. (Doc. No. 11).
pled guilty without a plea agreement to possession with
intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1), (b), and to using and carrying a firearm
during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c). He was sentenced to a
total of 70 months' imprisonment. See (3:06-cv-16,
Doc. No. 54). The Fourth Circuit Court of Appeals affirmed.
United States v. Matthew, 451 Fed.Appx. 296
(4th Cir. 2011).
filed a pro se § 2255 Motion to Vacate that was
docketed in the instant civil case in 2013. (Doc. No. 1). He
argued, inter alia, that counsel was ineffective for
failing to challenge the § 924(c) charge and that he did
not “use” or “carry” a firearm in
connection with a drug trafficking crime for purposes of
§ 924(c). (Doc. No. 1 at 5). The Court denied and
dismissed the petition with prejudice on October 8, 2015.
Matthew v. United States, 2015 WL 13573975 (W.D.
N.C. Oct. 8, 2015). The Fourth Circuit Court of Appeals
denied a certificate of appealability and dismissed
Petitioner's appeal on March 2, 2016. United States
v. Matthew, 635 Fed.Appx. 104 (4th Cir.
filed the instant Motion for Reconsideration on April 10,
2018. He asks the Court to reconsider its October 8, 2015,
Order pursuant to Rules 60(b)(4) and (5) of the Federal Rules
of Civil Procedure because the judgment is void and its
prospective application is inequitable. Alternatively, he
asks the Court to “entertain an independent
action” to relieve him from judgment under which he is
imprisonment pursuant to Rule 60(d). (Doc. No. 1 at 1-2). He
argues that he is “currently serving a sentence that
would not be imposed today” because simple possession
of drugs is not a predicate offense for purposes of 924(c),
and mere presence of a firearm at the scene of a crime is
insufficient to convict under 924(c). (Doc. No. 11 at 2).
60(b) 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 ...