United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Petitioner's
Petition Pursuant to Federal Rule of 60(b)(4) for Relief from
Void Judgment [Doc. 1], which the Court construes as a Motion
to Vacate, Set Aside or Correct Sentence under 28 U.S.C.
Roosevelt Could (“Petitioner”) is a federal
prisoner, who, on October 22, 2007, was found guilty after a
jury trial of one count of mortgage fraud conspiracy, in
violation of 18 U.S.C. § 371; three counts of mail
fraud, in violation of 18 U.S.C. § 1341; thirteen counts
of bank fraud, in violation of 18 U.S.C. § 1344; one
count of money laundering conspiracy, in violation of 18
U.S.C. § 1956(h); and six counts of money laundering, in
violation of 18 U.S.C. § 1956(a)(1). United States
v. Cloud, 680 F.3d 396, 399 (4th Cir. 2012). The
convictions stemmed from Petitioner's leadership of a
mortgage-fraud conspiracy from 1999 until 2005. Id.
The Court sentenced Petitioner to 324 months'
timely appealed. The Fourth Circuit affirmed his convictions,
except the six money laundering convictions, which it
reversed. Id. at 409. The court remanded for
resentencing. Id. at 412. The United States Supreme
Court denied Petitioners's petition for a writ of
certiorari. Cloud v. United States, 568 U.S. 862
January 7, 2014, Petitioner filed a motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255,
raising various challenges to his criminal judgment. No.
3:14-cv-00006-FDW, Doc. 1. The Court dismissed the motion
without prejudice because Petitioner had not been resentenced
and his judgment therefore was not yet final. Id. at
Doc. 4. On September 23, 2015, the Court resentenced
Petitioner and entered an amended judgment, sentencing him to
a total of 324 months' imprisonment. No.
3:06-cr-00096-FDW-1, Doc. 281. Petitioner did not appeal the
judgment. See id. at Doc. 283.
January 3, 2017, Petitioner filed a document purporting to be
a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 in the United States District Court for the
Eastern District of North Carolina. No. 3:18-cv-00088-FDW,
Docs. 1, 1-1 through 1-5. Because the petition challenged the
legality of his 2015 criminal judgment, the Eastern District
provided Petitioner an opportunity to convert his § 2241
petition to a § 2255 motion to vacate. Id. at
Doc. 10. Upon receiving notice from Petitioner agreeing to
the conversion, the Eastern District transferred the entire
action to this Court, where venue was proper. Id. at
this Court notified Petitioner that his 542-page pleading
failed to comply with Rule 2(c) of the Rules Governing
Section 2255 Proceedings for the United States District
Courts, which requires that motions to vacate identify each
ground for relief and state the supporting facts.
Id. at Doc. 14. The Court provided Petitioner an
opportunity to correct this and other identified deficiencies
by filing an amended motion to vacate on a § 2255 form
approved for use in this District. Id.
Petitioner filed a document titled “Motion Reinstating
28 U.S.C. Subsection 2241 Filing as Correct - Motion to
Rescind 28 U.S.C. 2241 Construed to a 28 U.S.C. 2255, ”
in which he rescinded his previous agreement to the
Court's conversion of the § 2241 petition to a
§ 2255 motion. No. 3:18-cv-00088-FDW, Doc. 15. The Court
granted the Motion, ordered that Petitioner's motion to
vacate be reinstated as a petition for writ of habeas corpus
pursuant to § 2241, and dismissed the § 2241
petition for lack of jurisdiction. Id. at Doc. 16.
now again attempts to have his 2015 criminal judgment
vacated, this time by way of Rule 60(b) of the Federal Rules
of Civil Procedure. [Doc. 1]. Petitioner claims his criminal
judgment is void for lack of subject matter jurisdiction,
that this Court violated his right to due process during his
criminal proceedings, that the Government committed fraud
upon the court, and that counsel rendered ineffective
assistance at trial. [Id.]. Petitioner placed his
Rule 60(b) Motion in the prison system for mailing on
November 14, 2018, and the Motion was stamp-filed in this
Court on November 20, 2018. [Id.].
Court for the Eastern District of North Carolina explained in
Petitioner's previous habeas action, “[a]
petitioner must challenge the legality of his conviction and
sentence under 28 U.S.C. § 2255 unless the remedy under
section 2255 ‘is inadequate or ineffective to test the
legality of his detention.'" No. 3:18-cv-00088-FDW,
Doc.10. Petitioner makes no effort in the instant Rule 60(b)
Motion to explain how or why § 2255 is inadequate or
ineffective to test the legality of his detention.
should have filed this Motion pursuant to § 2255. Prior
to characterizing a mislabeled post-conviction action as an
initial § 2255 motion to vacate, however, the Court must
provide the prisoner notice and an opportunity to respond.
See United States v. Emmanuel, 288 F.3d 644, 649
(4th Cir. 2002), overruled in part on other grounds by
Castro v. United States, 540 U.S. 375, 383 (2003).
such, on November 29, 2018, the Court entered a Notice and
Order, notifying Petitioner that it intends to characterize
Petitioner's Rule 60(b) Motion as a § 2255 motion to
vacate, set aside or correct sentence. The Court further
advised Petitioner that the law imposes a one-year statute of
limitations on the right to bring a habeas action pursuant to
§ 2255, fully setting forth all subsections of 28 U.S.C.
§ 2255(f), see infra at 5. [Doc. 2 at 4].
Finally, the Court ordered that Petitioner had 21 days from
the entrance of that Order to inform the Court in writing
whether he agrees to the characterization of his Rule 60(b)
Motion as a § 2255 motion to vacate and to file any
additional claims challenging his 2015 judgment.
[Id. at 5].
and one-half months later, on April 15, 2019, Petitioner
filed a document entitled “Conditional Permission
Granted to Adjudicate FRCIVP 60(b)(4) Under 28 USC
2255….” (“Conditional Permission”)
[Doc. 4]. From what the Court can gather, Petitioner purports
to give the Court permission to consider his Rule 60(b)
Motion a § 2255 motion to vacate “conditioned that
the same terms and conditions to construe the Laws, Rules and
nature of the 60(b)(4) to a 28 USC 2255 are equally applied
to the ‘STATUTE OF LIMITATION'; ...