United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE
August 30, 2018, Tito Lamont Anderson
("petitioner"), a federal inmate, filed pro se a
petition for writ of habeas corpus under 28 U.S.C. §
2241 [D.E. 1]. On January 23, 2019, the court conducted its
preliminary review under 28 U.S.C. § 2243 and allowed
the action to proceed. See Order [D.E. 5]. On March
15, 2019, respondent filed a motion to dismiss [D.E. 10] and
a memorandum in support [D.E. 11]. Pursuant to Roseboro
v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per
curiam), the court issued a "Rule 12 Letter"
notifying petitioner about the pending motion to dismiss, the
consequences of failing to respond, and the response deadline
[D.E. 12]. Petitioner timely filed a response in opposition
together with an attachment in support [D.E. 13].
October 7, 2019, the court issued an order that granted
respondent's motion to dismiss, dismissed the action
without prejudice for lack of jurisdiction, and denied a
Certificate of Appealability. See Order [D.E. 15].
On October 24, 2019, petitioner moved for reconsideration
[D.E. 17]. Petitioner requests that the court certify the
following question to the United States Court of Appeals for
the Fourth Circuit: "In light of US v. Jones, U.S.
v. Wheeler, U.S. v. Jefferson, Hahn v. Moseley and Chazen v.
Marske, 'can' the district court grant the
Habeas Relief to the Career Offender defendants where were
under the Advisory Guideline system for this Circuit
decision to alter or amend a judgment pursuant to Federal
Rule of Civil Procedure 59(e) is within the sound discretion
of the court. See Dennis v. Columbia Colleton Med. Ctr.,
Inc., 290 F.3d 639, 653 (4th Cir. 2002). This circuit
recognizes three reasons for granting a Rule 59(e) motion to
alter or amend a judgment: "(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available [previously]; or (3) to correct a
clear error of law or prevent manifest injustice."
Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007)
does not contest the court's determination it lacks
jurisdiction but instead re-raises old arguments,
compare Mot. [D.E. 17], with Pet. [D.E. 1], and
Pet'r's Resp. [D.E. 13] at 1-2, and cites two new
cases, see Hahn v. Moseley, 931 F.3d 295, 303 (4th
Cir. 2019) (applying Fourth Circuit procedural law, but a
substantive Tenth Circuit law that rendered the conduct in
question, a firearm possession charge, non-criminal);
Chazen v. Marske, 938 F.3d 851, 859 (7th Cir. 2019)
(holding, after Mathis v. United States, 136 S.Ct.
2243 (2016), petitioner's second-degree burglary
convictions no longer qualified as a predicate violent felony
under the Armed Career Criminal Act). Because the new cases
do not reflect any 1) change of settled substantive law, 2)
deemed to apply retroactively on collateral review, that is
3) relevant to petitioner's case or otherwise binding on
this court, petitioner still cannot satisfy the section
2255(e) "savings clause" test announced in
United States v. Wheeler, 886 F.3d 415 (4th Cir.
2018) ("Wheeler"). Further, because the motion for
reconsideration merely seeks to re-litigate prior claims but
does not cite to any change in controlling law, raise newly
discovered evidence, identify any clear error in the
court's previous orders, or show that the result was
manifestly unjust, petitioner is not entitled to relief under
Rule 59(e). See Zinkand, 478 F.3d at 637; see also
Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5
(2008) ("Rule 59(e) permits a court to alter or amend a
judgment, but it may not be used to relitigate old matters,
or to raise arguments or present evidence that could have
been raised prior to the entry of judgment." (citation
and quotation marks omitted)).
extent petitioner instead seeks relief under Federal Rule of
Civil Procedure 60(b), this rule "authorizes a district
court to grant relief from a final judgment for five
enumerated reasons or for any other reason that justifies
relief." Aikens v. Ingram, 652 F.3d 496, 500
(4th Cir. 2011) (en banc) (quotation omitted). Under Rule
60(b), a movant first must demonstrate that his motion is
timely, that he has a meritorious claim or defense, that the
opposing party will not suffer unfair prejudice from setting
aside the judgment, and that exceptional circumstances
warrant the relief. See Robinson v. Wix Filtration Corp.
LLC, 599 F.3d 403, 412 n.12 (4th Cir. 2010). If a movant
satisfies these threshold conditions, he must then
"satisfy one of the six enumerated grounds for relief
under Rule 60(b)." Nat'l Credit Union Admin. Bd.
v. Gray, 1 F.3d 262, 266 (4th Cir. 1993).
because petitioner's motion for reconsideration fails to
raise a "meritorious claim or defense," or
otherwise demonstrate that "exceptional circumstances
warrant the relief," petitioner fails to meet the
threshold requirements under Rule 60(b). See
Robinson, 599 F.3d at 412 n. 12.
court concludes that petitioner fails to establish grounds
for relief under either Rule 59(e) or Rule 60(b). Although
petitioner asks the court to certify his inquiry to the
Fourth Circuit, the court declines for the same reasons a
Certificate of Appealability was denied. See Order
reasons discussed above, the court denies the motion for