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
pro se “Motion for Reconsideration or in the
Alternative Motion to Reopen Collateral Proceedings Pursuant
to Fed. R. Civ. Proc. 60(b), ” (Doc. No. 83).
asks the Court to reconsider its October 17, 2019 Order
construing his Motion to Amend, (Doc. No. 80), and Motion to
Correct Record, (Doc. No. 81), as unauthorized successive
§ 2255 petitions and dismissing them for lack of
jurisdiction. See (Doc. No. 82). He argues that the
Court misconstrued his Motions as seeking sentencing relief
and argues that he was actually attacking the Court's
jurisdiction to enter its Judgment in the criminal case in
violation of Rule 11(b)(3) of the Federal Rules of Criminal
provides permits a court to correct orders and provide relief
from judgment under the following circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;
(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);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
60(b) is an “extraordinary remedy” which sets
aside “the sanctity of [a] final judgment.”
Compton v. Alton Steampship Co., Inc., 608 F.2d 96,
102 (4th Cir. 1979) (citation and internal
quotation marks omitted). A movant must first show that he
has moved in a timely fashion, that he has a meritorious
defense to the judgment, that the opposing party would not be
unfairly prejudiced by a set aside, and show exceptional
circumstances. 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, 608 F.2d at 102). If a movant satisfies
these three requirements, then he must show that his motion
falls under one of the six grounds set forth in Rule 60(b).
Werner, 731 F.2d at 207. Relief from judgment under
Rule 60(b)(6) should be granted only upon a showing that
relief is “appropriate to accomplish justice” in
“situations involving extraordinary
circumstances.” Dowell v. State Farm Fire Cas.
Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir.
1993) (internal quotation marks and citation omitted). A
change in decisional law subsequent to a final judgment
provides no basis for relief under Rule 60(b)(6).
petitioner seeks relief from a judgment under Rule 60(b) on
grounds other than a 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 re-litigation 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); 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.”),
abrogated on other grounds by United States v.
McRae, 793 F.3d 392 (4th Cir. 2015).
general matter, “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.”
Winestock, 340 F.3d at 207; see also Gonzalez v.
Crosby, 545 U.S. 524, 531-33 (2005) (concluding that a
Rule 60(b) motion for relief from judgment that directly
challenges the underlying conviction constitutes a successive
§ 2254 petition).
purports to seek Rule 60(b) relief, but he has demonstrated
no basis upon which such relief can be granted. Petitioner
argues that the Motions that were denied in the October 17
Order “raised objections to the court's
jurisdiction to enter the criminal judgment pursuant Fed. R.
Crim. Proc. 11(b)(3), ” (Doc. No. 83 at 2), however no
such argument appears in those Motions. See (Doc.
Nos. 80-81). The Court construed Petitioner's Motions,
which raised substantive sentencing claims, as unauthorized
successive § 2255 petitions and dismissed them for lack