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Noel v. United States

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

September 27, 2019

BRYAN KEITH NOEL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr., Judge

         THIS MATTER is before the Court on Petitioner’s pro se Motions that were filed after the Court dismissed his 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct sentence for lack of jurisdiction as an unauthorized second or successive petition:[1]

(1) Petitioner’s “Combined Motion and Brief to Obtain Relief from a Judgment in a Habeas Proceeding Pursuant to the Federal Rules of Civil Procedure, Rule 60(b)” (Doc. No. 13);
(2) Petitioner’s “Motion for Leave to Amend Pending Rule 60(b) Motion” (Doc. No. 14);
(3) Petitioner’s “Motion to Conduct Discovery in Accord with Rule 6 Governing § 2255 Proceedings and Request to Expand the Record Pursuant to Rule 7 Governing § 2255 Proceedings with Request for Evidentiary Hearing” (Doc. No. 16); and
(4) Petitioner’s Second “Motion for Leave to Amend Pending Rule 60(b) Motion, ” (Doc. No. 17), and “Amended Combined Motion and Brief to Obtain Relief from a Judgment in a Habeas Proceeding Pursuant to the Federal Rules of Civil Procedure, Rule 60(b), ” (Doc. No. 17-1), and attached exhibits.

         A jury found Petitioner guilty in the underlying criminal case and the Court sentenced him to 300 months’ imprisonment. (1:09-cr-57, Doc. No. 116). The Fourth Circuit Court of Appeals affirmed and the United States Supreme Court denied certiorari. United States v. Noel, 502 Fed.Appx. 284 (4th Cir. 2012), cert. denied 134 S.Ct. 366 (2013).

         Petitioner’s initial § 2255 Motion to Vacate, case number 1:16-cv-406, was dismissed with prejudice as time-barred, Noel v. United States, 2017 WL 548985 (W.D. N.C. Feb. 8, 2017), and the Fourth Circuit dismissed Petitioner’s appeal, United States v. Noel, 692 Fed.Appx. 128 (4thCir. 2017).

         The instant case is Petitioner’s second § 2255 proceeding. (Doc. Nos. 1, 6). He raises a number of claims including actual innocence based on newly discovered evidence. The Court dismissed for lack of jurisdiction because Petitioner failed to obtain authorization from the Fourth Circuit pursuant to § 2255(h) before filing his second or successive § 2255 Motion to Vacate. (Doc. No. 9). Petitioner subsequently sought authorization from the Fourth Circuit to file a second or successive § 2255 petition which was denied on March 27, 2019. (Doc. No. 15).

         In the pending Motions, Petitioner asks the Court to reopen these § 2255 proceedings, consider his § 2255 claims on the merits, grant him an evidentiary hearing, appoint counsel to assist him in recovering additional documentation and, alternatively, certify questions about his claims of newly discovered evidence of actual innocence to the Fourth Circuit.

         The Court will grant Petitioner’s Second Motion for Leave to Amend the Rule 60(b) Motion, will deny the initial Motion for Leave to Amend as moot.

         With regards to Petitioner’s Second Amended Motion, he fails to satisfy Rule 60(b) by demonstrating any basis for reopening these § 2255 proceedings or any other relief. The Court dismissed the § 2255 Motion to Vacate in the instant case for lack of jurisdiction, (Doc. No. 9), the Fourth Circuit has now denied such authorization, (Doc. No. 15), [2] and Petitioner has demonstrated no basis for disturbing the Court’s prior ruling. Petitioner’s alternative freestanding claim of actual innocence, assuming such is cognizable on § 2255 review, [3] falls far short of the standard for demonstrating newly discovered evidence of actual innocence. Petitioner’s Motion for Discovery will be denied for the same reasons that the Court denied Petitioner’s Second Motion for Leave to Amend.

         IT IS THEREFORE ORDERED that:

1. Petitioner’s “Combined Motion and Brief to Obtain Relief from a Judgment in a Habeas Proceeding Pursuant to the Federal Rules of Civil Procedure, Rule 60(b), ...

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