Glover v. United States Of America

Filing 29

ORDER granting 27 Motion to Dismiss; denying 28 Motion Reopen Judgment Pursuant to Rule 60(b). Signed by Judge William T. Moore, Jr on 8/14/2023. (pts)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

DAMIEN LAMONT GLOVER,

Petitioner,
CASE NO. CV418-020

V.

CR416-258
UNITED STATES OF AMERICA

Respondent,

ORDER

Before

the

Court

is

Petitioner

Damien

Glover's

Motion

to

Reopen Judgment Pursuant to Rule 60(b). (Doc. 28.) In response.

Respondent filed a Motion to Dismiss Petitioner's Fed. R. Civ. P.
60(b) Motion. (Doc. 27.)i For the following reasons. Petitioner's

motion (Doc. 28) is DENIED, and Respondent's motion to dismiss is
GRANTED (Doc. 27).
BACKGROUND

In September 2016, Petitioner pleaded guilty to conspiracy to

possess

with

intent

to

distribute

controlled

substances

in

violation of 21 U.S.C. §§ 846, 841(b)(1)(C). (CR416-258, Doc. 56.)
Petitioner was sentenced to 151 months' imprisonment (CR416-258,
Doc. 85 at 2.)

1 Unless otherwise stated, all citations are to Petitioner's civil
docket on this Court's electronic filing system, CV418-020.

In January 2018, Petitioner filed his original Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Doc.

1.) The Magistrate Judge recommended Petitioner's motion be denied
(Doc. 5 at 4), but after Petitioner's objection (Doc. 6), the

Magistrate

Judge

afforded

Petitioner time

to file an amended

§ 2255 motion (Doc. 14 at 6). On August 31, 2018, Petitioner filed
his amended § 2255 motion, in which he argued his counsel was
ineffective

for

failing

to

negotiate

a

better

plea

agreement

without an enhancement, failing to file a direct appeal, failing
to argue that the government induced him to enter a plea agreement

with promise of a five-year sentence, failing to object to the
government's supposed breach of the plea agreement, failing to
object to the court and prosecutor using uncharged conduct to
enhance Petitioner's guidelines range, failing to object to the

court not specifying which convictions qualified him as a career

offender,

failing

to

object

to

the

guidelines

leadership

enhancement, failing to object to.his prior obstruction conviction

qualifying for criminal history points, and claiming his 2004 and
2005 convictions should have counted as only one conviction. (Doc.

17 at 3-13.) Respondent moved to dismiss Petitioner's motion. (Doc.

19.) The Magistrate

Judge issued a report and recommendation

recommending that Petitioner's motion be denied. (Doc. 22 at 14.)

The Court adopted the Magistrate Judge's report and recommendation
after Petitioner filed no objections to it. (Doc. 25.)

According to the Federal Bureau of Prisons' (""BOP") website,
Defendant

is

currently

incarcerated

at

Federal

Correctional

Institution Edgefield located in Edgefield, South Carolina, with
a projected release date of February 24, 2027. See BOP Inmate

Locator, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/
(last visited Aug. 11, 2023).
ANALYSIS

Petitioner asks the Court to reopen the judgment denying him
habeas relief pursuant to Federal Rule of Civil Procedure 60(b).
(Doc. 28 at 1.) Citing United States v. Dupree, 57 F.4th 1269,
(11th

Cir.

2023),

Petitioner

argues

that

his

counsel

was

ineffective for failing to argue he ''was not a career criminal
under 4Bl.l(a) because 'the inchoate offense of conspiracy does

not,

constitute

a

"controlled

substance

offense"

under

the

definition of U.S.S.G. Section 4Bl.l(b).' " (Doc. 28 at 4.) In

response. Respondent argues that the "Court lacks jurisdiction
over

[Petitioner's]

impermissibly

motion"

successive

§

because

2255

it

motion."

"is

(Doc.

actually

27

at

an

3.)

Alternatively, Respondent asks the Court to deny Petitioner's
motion as untimely. (Id. at 5.)

Petitioner's Rule 60(b) motion fails because it constitutes

a successive habeas petition over which this Court does not have

jurisdiction. "Rule 60(b) allows a party to seek relief from a
final judgment, and request reopening of his case, under a limited

set

of

circumstances

including

fraud,

mistake,

and

newly

discovered evidence." Gonzalez v. Crosby, 545 U.S. 524, 528, 125
S. Ct. 2641, 2645-46, 162 L. Ed. 2d

480 (2005). Rule 60(b)(6)

permits reopening when a petitioner shows ^^any . . . reason that
justifies relief" other than the more specific circumstances set
out in Rules 60(b)(1)-(5). Fed. R. Civ. P. 60(b)(6). However, when

the

underlying

judgment

is

an

unsuccessful

§

2255

petition,

additional considerations apply. 'MOJnce a federal prisoner has
filed a § 2255 motion that has been adjudicated on the merits, he
may not file a second or successive motion without first obtaining
authorization

from

the

appropriate

United

States

Court

of

Appeals." Stewart v. United States, No. CV 1:08-CR-164-LMM, 2017
WL 10185851, at *1 (N.D. Ga. July 19, 2017) (citing 28 U.S.C.
§ 2244(b)(3)(A), § 2255(h)).

'

In Gonzalez, the Supreme Court addressed when a Rule 60(b)(6)

motion may

be

considered

an

unauthorized second

or successive

habeas petition. 545 U.S. at 532, 125 S. Ct. at 2648. A^^Rule 60(b)
motion is to be treated as a successive habeas petition if it: (1)
^seeks to add a new ground of relief;' or (2) ^attacks the federal
court's previous resolution of a claim on the merits.' " Williams
V. Chatman, 510 F.3d 1290, 1293-94 (11th Cir. 2007).

[h] ^claim'

. . . is an asserted federal basis for relief from a state court's

judgment of conviction." Gonzalez, 545 U.S. at 530, 125 S. Ct. at
2647.

The

term "on

the

merits" refers "to

a

determination

that

there exist or do not exist grounds entitling a petitioner to

habeas corpus relief . . .

Id. at 532 n.4, 125 S, Ct. at 2648

n.4. In contrast, a true Rule 60(b) motion attacks "some defect in
the

integrity

substance

of

of

the

the

federal

federal

habeas

court's

proceedings,"

resolution

of

a

not

claim

on

"the
the

merits[.]" Williams, 510 F.3d at 1294. A valid Rule 60(b) motion

will "assert[] that a previous, ruling which precluded a merits
determination was in error-for example, a denial for such reasons
as

failure

to

exhaust,

procedural

default,

or

statute-of-

limitations bar." Gonzalez, 545 U.S. at 532 n.4, 125 S. Ct. at
2648 n.4.

Here,

Petitioner

does

not

attack

"some

defect

in

the

integrity" of his prior federal habeas proceedings. Rather, he
argues

an

additional

basis

Accordingly, Petitioner's

for

Rule

relief

60(b)

pursuant

to

motion is more

Dupree.

properly

construed as a successive § 2255 petition. Because Petitioner has
not received authorization to file a second or successive habeas

petition from the Eleventh Circuit, this Court lacks jurisdiction
to consider his motion. Accordingly, Petitioner's motion (Doc. 28)
is DENIED, and Respondent's motion is (Doc. 27) GRANTED.
SO ORDERED this

day of August 2023.

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA