United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on petitioner's motion to
reopen habeas corpus and motion to amend her motion to reopen
habeas corpus. The government has responded, defendant has
replied, and the motions are ripe for ruling.
is currently serving a term of 120 months' imprisonment
after pleading guilty to health care fraud and aiding and
abetting in violation of 18 U.S.C. § 1347 and 18 U.S.C.
§ 2. Petitioner's conviction and sentence were
affirmed on appeal. [DE 57]. Petitioner has previously filed
a motion to vacate, set aside, or correct sentence pursuant
to 28 U.S.C. § 2255 which dismissed on the merits by
order entered February 10, 2014. [DE 77]. Petitioner moved to
reconsider the Court's dismissal, which was denied. [DE
the Court grants petitioner's motion to amend her motion
to reopen habeas proceeding, and the Court has considered
petitioner's amended motion. In her motion and amended
motion, which have been filed under Fed.R.Civ.P. 54(b),
petitioner seeks to dismiss the criminal information filed in
this case, reconsideration of the Court's February 7,
2014, order, and entry of an order vacating the
government's motion for summary judgment. Contrary to
petitioner's arguments, the Court's order of 7
February 2014, entered 10 February 2014, was a final order as
it disposed of all claims raised by petitioner in her 28
U.S.C. § 2255 motion to vacate.
the Court's 10 February 2014 order was final,
petitioner's motion is properly characterized as a Rule
60(b) motion for relief from judgment. See United States
v. McRae, 793 F.3d 392, 397 (4th Cir. 2015). A movant
seeking relief under Rule 60(b)(6) must show extraordinary
circumstances justifying the reopening of a final judgment.
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Such
circumstances are rare in a habeas context. Id.
contends that her motion challenges a defect in the integrity
of the habeas proceeding, and argues that her attorney
abandoned her during her § 2255 proceedings. Attorney
abandonment can sustain a successful motion for relief under
Rule 60(b)(6). Maples v. Thomas, 565 U.S. 266,
281(2012). The record reflects, however, that, while her
first, successful § 2255 motion was filed by counsel,
petitioner filed her numerically second but not successive
§ 2255 motion pro se. [DE 61 ].
remaining arguments regarding the conduct of her attorneys is
in regard to conduct which occurred during her criminal
proceedings. Petitioner has previously raised a claim of
ineffective assistance of counsel in her § 2255
proceedings, and new legal arguments or a proffer of
additional evidence generally amount to a continuing
collateral attack on a conviction or sentence; such arguments
are appropriately characterized as second or successive
§ 2255 proceedings. United States v. Winestock,
340 F.3d 200, 207 (4th Cir. 2003).
to the extent that petitioner's motion to reopen her
habeas proceedings raises a proper Rule 60(b) claim,
petitioner has failed to demonstrate she is entitled to
relief. To the extent that petitioner has raised claims that
are properly characterized as second or successive §
2255 claims, they are dismissed for lack of subject matter
jurisdiction. Winestock, 340 F.3d at 205; see
also United States v. Emmanuel, 288 F.3d 644, 650 (4th
Cir. 2002); United States v. Brown, 132 Fed.Appx.
430, 431 (4th Cir. 2005) (unpublished) (a petitioner need not
receive notice prior to dismissal of second or successive
§ 2255 motion). Petitioner's motion to reopen her
habeas proceeding is therefore DENIED in part and DISMISSED
in part for lack of jurisdiction.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by i demonstrating
that reasonable jurists would find that an assessment of the
constitutional claims is debatable and that any dispositive
procedural ruling dismissing such claims is likewise
debatable. Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003); Slack v. McDaniel, 529 U.S. 473,
483-84 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th
Cir. 2001). As reasonable jurists would not find this
Court's dismissal of petitioner's second or
successive § 2255 claims debatable, a certificate of
appealability is DENIED.
foregoing reasons, petitioner's motion to amend [DE 180]
is GRANTED. Petitioner's motion to reopen her habeas
proceeding [DE 179 & 180] is DENIED in part and DISMISSED
in part for lack ...