Cloud v. United States

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS 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. § 2255.

         I. BACKGROUND

         William 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' imprisonment. Id.

         Petitioner 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 (2012).

         On 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.

         On 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 Docs. 11-13.

         Subsequently, 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.

         Thereafter, 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.

         Petitioner 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.].

         As the 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.

         Petitioner 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).

         As 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].

         Four 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'; ...