Evans v. Clay
Filing
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MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/3/2018. (AFS)
FILED
2018 Oct-03 PM 04:41
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ROBERT M. EVANS,
Petitioner,
v.
BECKY CLAY, Warden,
Respondent.
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Case No.: 7:17-cv-01061-AKK-HNJ
MEMORANDUM OPINION
This is an action for a writ of habeas corpus action filed by petitioner Robert
M. Evans, pro se, pursuant to 28 U.S.C. § 2241. (Doc. 1). Evans challenges his
sentence as a career offender, asserting his prior conviction under § 13A-12-211
Alabama Code 1975, as amended, for unlawful distribution of crack cocaine,
cannot serve as a predicate offense for career offender sentencing.1 (Id. at 9). On
August 21, 2018, the magistrate judge entered an amended report and
recommendation pursuant to 28 U.S.C. § 636(b), finding the petition properly
considered under § 2255, rather than § 2241, and further finding, in that stance, the
petition is successive. (Doc. 13). The magistrate judge recommended the petition
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Evans previously filed a motion to vacate pursuant to 28 U.S.C. § 2255, docketed as case
number 5:11-cv-08012-IPJ-HGD. The basis underlying his sentence is meticulously set forth in
the report and recommendation entered in that case. See id., at doc. 36. This court may take
judicial notice of its own records and those of inferior courts. Rule 201, Fed.R.Civ.P.; U.S.v .
Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987).
be dismissed without prejudice to allow the petitioner an opportunity to obtain the
Eleventh Circuit Court of Appeals’ permission to file a successive petition. (Id. at
8). Evans filed timely objections to the report and recommendation. (Doc. 14).
In his June 2017 habeas petition, Evans asserts his conviction under Ala.
Code § 13A-12-213(a) cannot serve as a predicate for career offender sentencing,
based on Mathis v. United States, 579 U.S. ---, 136 S.Ct. 2243 (2016), 2 and his
prior conviction under Ala.Code § 13A-12-211, for distribution of crack cocaine,
cannot serve as a predicate for career offender sentencing. (Doc. 1 at 9). Evans
objects to the magistrate judge’s finding that, because his petition is successive,
this court lacks jurisdiction to consider his petition unless and until the Eleventh
Circuit authorizes the same. (Doc. 14 at 1).
According to Evans, the outcome of Jarvis Mims v. United States, No. 1712601 (11th Cir. April 22, 2018), might impact this court’s jurisdiction to hear his
petition. (Doc. 14 at 1). Evans also asserts this court should look beyond the label
of a motion and determine whether the motion is cognizable under a different
remedial statutory framework. (Id. at 2). Turning first to Evans’ claim that this
court may stay his petition pending the outcome of Jarvis Mims v. United States,
No. 17-12601, this position contradicts the Eleventh Circuit’s holding in
2
Mathis provided guidance on how to make threshold determinations concerning prior
convictions for purposes of the Armed Career Criminal Act (“ACCA”). See e.g., In re
Hernandez, 857 F.3d 1162, 1164 (11th Cir. 2017) (citing Mathis, 136 S. Ct. at 2248-57).
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McCarthan v. Dir. of Goodwill Indus.-Suncoast, Ind., 851 F.3d 1076 (11th Cir.
2017). Regardless of whether the Eleventh Circuit ultimately determines in Mims
that “an Alabama conviction for unlawful distribution of a controlled substance
under Ala. Code § 13A-12-211(a) [does not] properly qualify as an ACCA
predicate offense,” Mims, No. 17-12601 at 8, this court is bound by the
determination in McCarthan that Evans must proceed under § 2255. Id. at 10991100. And under § 2255, this petition is successive. Because it is successive,
Evans must follow the procedures set forth in 28 U.S.C. § 2244(a)(3) and 28
U.S.C. § 2255(h). Evan points to no authority which allows this court to disregard
controlling precedent and simply stay his § 2241 petition pending the outcome of
an appeal, pending in the Eleventh Circuit, that was brought pursuant to § 2255.
Rather, the Eleventh Circuit has foreclosed this very argument, stating “a change in
case law does not trigger relief under 28 U.S.C. § 2255(e).”3 McCarthan, 851 F.3d
at 1085. Without permission to pursue a successive petition from the Eleventh
Circuit, this court lacks jurisdiction to consider Evans’ petition or to hold it in
abeyance. See 28 U.S.C. § 2244(b)(3)(A).
Evans next asserts he should be allowed to proceed under Rule 60(b)(6),
Fed.R.Civ.P. (Doc. 14 at 2). A Rule 60(b)(6) motion may be granted for “any
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Moreover, the Eleventh Circuit does not recognize Mathis as providing a “new rule of
constitutional law” for purposes of 28 U.S.C. § 2255(h). Instead, “Mathis provided guidance to
courts in interpreting a criminal statute.” In re Hernandez, 857 F.3d 1162, 1164 (11th Cir. 2017)
(quoting Mathis, 136 S. Ct. at 2248-57).
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other reason that justifies relief.” Rule 60(b)(6), Fed.R.Civ.P. A “movant seeking
relief under Rule 60(b)(6) [must] show extraordinary circumstances justifying the
reopening of a final judgment.” Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d 1198,
1210 (11th Cir. 2014) (alteration in original). However, a motion under Rule 60(b)
may not be used to assert, or reassert, claims of error in the underlying conviction.
See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005) (“a Rule 60(b) motion based
on a purported change in the substantive law” could “impermissibly circumvent the
requirement that a successive habeas petition be precertified by the court of
appeals as falling within an exception to the successive-petition bar.”); United
States v. Evans, Case No. 5:11-cv-08012-IPJ-HGD. 4 As set forth in the report and
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In ruling on a Rule 60(b) motion in Evans’ prior § 2255 action, the court stated:
To the extent that Petitioner directs his 60(b) motion to the judgment of
conviction and sentence in his criminal case, Petitioner cannot use Rule 60(b) of
the Federal Rules of Civil Procedure as a vehicle to attack his criminal sentence
…. Rule 60, Fed.R.Civ.P., may not be used to relieve a party from a final
judgment or provide relief from operation of a judgment of conviction or sentence
in a criminal case. See United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir.
1998); United States v. Ortiz, 1997 WL 733856 (E.D. Pa. Nov. 7, 1997); United
States v. Grange, 1995 WL 692947 (D. Or. Nov. 21, 1995).
Because Evans cannot use a Rule 60 motion to attack his criminal conviction and
sentence, the court must construe the motion as challenging the final judgment in
this § 2255 proceeding. Evans, in essence, is raising a new ground for relief from
his conviction and sentence. Thus, he is attempting to circumvent the prohibition
on second or successive § 2255 motions by styling the new challenge as a Rule 60
motion. See 28 U.S.C. § 2255(h) (requiring a second or successive § 2255 motion
to be certified by the appellate court pursuant to 28 U.S.C. § 2244); Gonzalez v.
Crosby, 545 U.S. 524, 532 (2005) (state prisoners could not use Rule 60(b) to
evade the second or successive petition bar contained in 28 U.S.C. § 2244(b) by
either adding a new ground for relief or attacking the federal court’s previous
rejection of a claim on the merits); Gilbert v. United States, 640 F.3d 1293, 1323
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recommendation, even if Evans is entitled to relief pursuant to Mathis, this court
cannot reach that question without authorization from the Eleventh Circuit to
consider a successive petition. See, e.g., In re Bradford, 830 F.3d 1273, 1277
(11th Cir. 2016); Williams v. Warden, Federal Bureau of Prisons, 713 F.3d 1332,
1338-39 (11th Cir. 2013).
Having carefully reviewed and considered de novo all the materials in the
court file, including the magistrate judge’s Report and Recommendation and
Evans’ objections thereto, the court is of the opinion that the magistrate judge’s
findings concerning the successiveness of this petition are due to be and are hereby
ADOPTED and his recommendation is ACCEPTED.
Evans’ objections are
OVERRULED. Accordingly, the petition for writ of habeas corpus is due to be
DISMISSED WITHOUT PREJUDICE.
A separate Final Order will be entered.
DONE the 3rd day of October, 2018.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
(11th Cir. 2011) (extending Gonzalez to federal prisoners ….); Hardy v. United
States, 443 Fed.App’x. 489 (11th Cir. 2011) (motion to vacate judgment was a
successive motion, subject to dismissal absent authorization from Court of
Appeals).
United States v. Evans, Case No. 5:11-cv-08012-IPJ-HGD (N.D.Ala. Feb. 2, 2016) (doc.
48 at 7-8).
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