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Matthew v. United States

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

June 19, 2018

JUSTIN MATTHEW, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr. United States District Judge

         THIS MATTER comes before the Court on Petitioner's Motion for Reconsideration. (Doc. No. 11).

         I. BACKGROUND

         Petitioner 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.[1] 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).

         Petitioner 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. 2016).

         Petitioner 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).

         II. DISCUSSION

         (1) Reconsideration

         Rule 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 ...

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