United States District Court, W.D. North Carolina, Statesville Division
KENNETH D. BELL UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Petitioner's
“F.R.C.P. True Rule 60(b)(6) Motion.” [Doc. 20].
For the following reasons, the Court finds that this is an
unauthorized, successive petition, and the Court, therefore,
denies the Motion.
the relevant factual and procedural background of this matter
has been previously described in detail by the Court in its
October 14, 2014 Order denying and dismissing with prejudice
Petitioner's original Section 2255 Motion to Vacate, Set
Aside or Correct Sentence and the same is herein incorporated
by reference. [See Doc. 9]. Petitioner's
original Section 2255 motion was adjudicated on the merits.
[Id.]. The Fourth Circuit Court of Appeals dismissed
as untimely Petitioner's appeal from the Court's
Order denying his Section 2255 motion. [Doc. 17].
22, 2019, Petitioner filed the instant Motion, which this
Court construes as a successive motion to vacate under 28
U.S.C. § 2255. In his Motion, Petitioner asserts that he
“is contesting the manner in which his ineffective
assistance of counsel IAC claim regarding breach of agreement
was decided under procedural ground not on the merit of the
claim.” [Doc. 20 at 1]. As grounds for the instant
“True Rule 60(b)(6) Motion, ” Petitioner argues
that the Government (1) breached the plea agreement in
Petitioner's underlying criminal proceedings and the
Petitioner was, therefore, exposed to a higher sentence and
(2) “coaxed the Court to ignore the advisory nature of
the Guidelines and impose a mandatory sentence of
life.” [Doc. 17 at 2-4].
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. After having
considered the record in this matter, the Court finds that no
response is necessary from the United States. Further, the
Court finds that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
purports to seek relief under Federal Rule of Civil Procedure
60(b)(6). [Doc. 20]. Where a petitioner seeks relief
from a judgment under Rule 60(b) on grounds other than
clerical mistake, courts must treat such a motion as seeking
successive post-conviction relief when failing to do so would
allow the applicant to evade the bar against relitigation of
claims presented in a prior application or the bar against
litigation of claims not presented in a prior application.
United States v. Winestock, 340 F.3d 200, 206 (4th
Cir. 2003) (requiring district courts to review Rule 60(b)
motions to determine whether such motions are tantamount to a
§ 2255 motion). Regarding Rule 60(b) motions that are
actually attempts at successive collateral review, the Fourth
Circuit has stated:
a motion directly attacking the prisoner's conviction or
sentence will usually amount to a successive application,
while a motion seeking a remedy for some defect in the
collateral review process will generally be deemed a proper
motion to reconsider.
Id. at 207.
Petitioner's motion again attacks his conviction and
sentence, arguing that the Government breached the plea
agreement and convinced the Court to impose a
“mandatory” life sentence. As such,
Petitioner's motion must be construed as a § 2255
motion to vacate, notwithstanding its caption. See
Gonzalez v. Crosby, 545 U.S. 524, 530-31 (2005) (holding
that Rule 60(b) motions are treated as successive habeas
petitions); Everette v. United States, No.
5:04-cv-358, 2012 WL 4486107, at *2-3 (E.D. N.C. Sept. 28,
2012); United States v. MacDonald, 979 F.Supp. 1057,
1068 (E.D. N.C. 1997) (stating a motion to reopen is akin to
a successive habeas petition). Since Petitioner has already
filed a motion under § 2255 and this Court has
adjudicated the motion on the merits, Petitioner's
instant motion is a “second or successive” motion
under § 2255. Winestock, 340 F.3d at 206.
to 28 U.S.C. § 2244(b)(3)(A), “[b]efore a second
or successive application permitted by this section is filed
in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.” Thus,
Petitioner must first obtain an order from the United States
Court of Appeals for the Fourth Circuit before this Court
will consider any second or successive petition under 28
U.S.C. § 2255. Petitioner has not shown that he has
obtained the permission of the United States Court of Appeals
for the Fourth Circuit to file a successive petition. See
also 28 U.S.C. § 2255(h) (stating that “[a]
second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of
appeals”). Accordingly, this successive petition must
be dismissed. See Burton v. Stewart, 549 U.S. 147,
153 (2007) (holding that failure of petitioner to obtain
authorization to file a “second or successive”
petition deprived the district court of jurisdiction to
consider the second or successive petition “in the