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Ross v. Slagle

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

September 7, 2019

TERRANCE JAVARR ROSS, Petitioner,
v.
MIKE SLAGLE, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court upon Petitioner's Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)(1) and Rule 60(b)(2). (Doc. No. 13.) Also before the Court are Petitioner's supplemental Rule 60(b) Motions. (Doc. Nos. 14, 15.)

         I. RELEVANT PROCEDURAL HISTORY

         Petitioner is a prisoner of the State of North Carolina who, on August 5, 2014, entered an Alford plea of guilty in Cleveland County Superior Court, to two counts of possession of a firearm by a convicted felon. See State v. Ross, 794 S.E.2d 289, 290 ( N.C. 2016). In accordance with Petitioner's plea agreement with the State, the trial court consolidated the convictions for sentencing and sentenced Petitioner to 24-29 months in prison, to run at the expiration of any sentence being served. See id.

         Petitioner entered a notice of appeal the same day he entered his guilty plea. Id. at 291. Ten days later, on August 15, 2014, he filed a pro se motion for appropriate relief (“MAR”) in the trial court, arguing that the court lacked personal and subject matter jurisdiction over the case. Id. In an order filed August 20, 2014, the trial court denied Petitioner's MAR. Id. On February 27, 2015, Petitioner filed a petition for writ of certiorari in the North Carolina Court of Appeals, seeking review of the trial court's denial of his MAR.

         In an unpublished opinion entered on August 4, 2015, the state court of appeals dismissed Petitioner's direct appeal because he had no right of appeal from the trial court's acceptance of his guilty plea. State v. Ross, 776 S.E.2d 897, 2015 WL 4620517 ( N.C. Ct. App. 2015), rev'd on other grounds, 794 S.E.2d 289 ( N.C. 2016). Although neither party had briefed the issue, the court allowed Petitioner's certiorari petition to review the question of whether he entered his guilty plea knowingly and voluntarily. Ross, 794 S.E.2d at 291. After reviewing the plea hearing transcript, the court held that Petitioner conditioned his plea on the appealability of a non-appealable issue, and that the plea, therefore, “was not entered knowingly and voluntarily.” Id. at 292 (quoting Ross, 2015 WL 4620517, at *2). The appellate court vacated the trial court's judgment and remanded for further proceedings. Id. The North Carolina Supreme Court allowed the State's petition for discretionary review and, in an opinion issued on December 21, 2016, reversed the lower court's decision that the plea was not voluntary. Id. at 293.

         Petitioner filed a § 2254 Petition on December 12, 2017, raising a single ground for relief -- that he was denied his right to due process when the trial court failed to dismiss the two firearm possession charges after the State violated the provisions of N.C. Gen. Stat. § 15A-711. (§ 2254 Pet. 7, Doc. No. 1.) This Court entered an Order on May 29, 2018, dismissing the Petition as unexhausted. (Doc. No. 10.)

         Petitioner has filed a Motion for Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, seeking relief from judgment on the grounds that he exhausted his due process claim after this Court dismissed his § 2254 Petition and discovered new evidence to support the claim (“Rule 60(b) Mot. I”). (Doc. No. 13.) Since then, he has filed two amendments to Rule 60(b) Mot. I, adding what he asserts is more newly discovered evidence supporting his due process claim (“Rule 60(b) Mot. II, ” “Rule 60(b) Mot. III”). (Doc. Nos. 14, 15.)

         II. DISCUSSION

         Rule 60(b) permits a party to seek relief “from a final judgment, order, or proceeding.” Fed.R.Civ.P. 60(b). To obtain Rule 60(b) relief, a movant must first demonstrate that he has moved in a timely fashion, that he has a meritorious defense to the judgment, and that the opposing party would not be unfairly prejudiced if the judgment is vacated. See Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011); Werner v. Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984) (citing Compton v. Alton Steampship Co., Inc., 608 F.2d 96, 102 (4th Cir. 1979)). Thereafter, the movant must show relief from judgment is warranted under one of the six circumstances set out in Rule 60(b). Petitioner contends he is entitled to relief from this Court's judgment pursuant to Rule 60(b)(1) -- mistake, inadvertence, surprise, or excusable neglect - and Rule 60(b)(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). (Rule 60(b) Mot. I at 4, Doc. No. 13.)

         A. Rule 60(b) Threshold Requirements

         The Court finds Petitioner's Rule 60(b) I Motion has met the threshold requirement for timeliness, as he filed it less than six months after the Court entered judgment in this action. The Court also finds that Respondent would not be unfairly prejudiced if the judgment is vacated, as the Court entered judgment sua sponte and has never ordered that Respondent be served in this action.

         The Court finds that Petitioner has not demonstrated that he has a meritorious defense to the judgment, however. The meritorious defense requirement ensures that granting relief from the judgment under Rule 60(b) would not “in the end [be] a futile gesture.” Boyd v. Bulala, 905 F.2d 764, 769 (4th Cir.1990). To establish the existence of a meritorious defense, a party must present or proffer “evidence, which, if believed, would permit . . . the Court . . . to find for the [moving] party.” United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982).

         1. Exhaustion ...


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