Alvin v. United States Of America

Filing 71

ORDER denying 68 Motion To Take Judicial Notice, Motion to Reopen Case; denying 69 Motion to Deem the Government's Failure to Respond as Concession and Motion for Immediate Release. Signed by Judge J. Randal Hall on 08/25/2016. (thb)

IN THE UNITED

STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

MISTRELL ALVIN,

Petitioner,
CV

611-065

(Formerly CR 606-026-8)

v.
*

UNITED STATES OF AMERICA,

Respondent.

ORDER

Defendant

Mistrell

Alvin

was

convicted

by

a

jury

of

conspiracy to possess with intent to distribute crack and

powder cocaine in 2007.
imprisonment.

He was sentenced to 188 months

The Eleventh Circuit Court of Appeals affirmed

his conviction and sentence.

F.3d 772

(11th Cir.

See United States v.

Bacon,

598

2010).

On June 6, 2011, Alvin filed a timely and comprehensive
motion to

vacate,

U.S.C. § 2255.
Court

denied

set aside,

or correct

sentence under 28

Addressing the merits of Alvin's claims, this
the

§ 2255

motion,

as

well

as

motions filed by Alvin, on January 10, 2012.

several

other

The Court then

denied several post-judgment motions including a motion for
reconsideration

filed on

February 29,

reconsideration filed on March 19,

2012;

a motion

for

2012; a motion to present

newly discovered evidence filed on April 19, 2012; a motion to

reopen

the

case

filed

on

May

9,

reconsideration filed on June 7,
Eleventh

Circuit

denied

the

2013;

issuance

motion

for

Along the way,

2013.

and

the

on

a

a

certificate

of

appealability on two occasions.

Presently before the Court is another attempt by Alvin to
overturn his sentence, this time in the form of a "Request to

Take Judicial Notice and Request to Re-Open Case Sua Sponte."
The

motion

perpetrated

involves

a

fraud

Alvin's

on

the

claim

Court

that

by

the

Government

attributing

a

drug

quantity to him that was also attributed to other individuals
in another federal criminal case.

This is not a new claim;

the claim was raised and addressed in the original § 2255.

Thus,

the present motion is essentially another motion for

reconsideration under Federal Rule of Civil Procedure 60(b).

"Rule

60(b)

motions

challenging the

denial

of

habeas

relief are subject to the restrictions on second or successive

habeas petitions if the prisoner is attempting to either: (1)
raise a new ground for relief; or (2) attack a federal court's

previous resolution of a claim on the merits."

Solomon v.

United States, 300 F. App'x 857, 858 (11th Cir. 2008)
Gonzalez v.

Crosby,

545 U.S.

524,

530-32

(2005)).

(citing
As such,

this Court does not have jurisdiction to consider Alvin's

present motion unless and until he acquires the necessary
authorization

from the

Eleventh

Circuit.

See

28

U.S.C.

§§

2255,

2244(b)(3).

judicial notice

Accordingly,

(doc.

Alvin's

68J1 is DENIED.

lacks jurisdiction over the matter,

motion

Because

to

this

take

Court

Alvin's ''Motion to Deem

the Government Failure to Respond a Concession and Motion for
Immediate Release"

Finally,

(doc.

69)2 is also DENIED.3

in the underlying criminal case, Alvin filed a

"Motion for Bond" seeking release pending resolution of the
instant matter.

The motion for bond is DENIED AS MOOT.4

ORDER ENTERED at Augusta, Georgia, this
August,

<^<Sr^ day of

2 016.

TDAL

HALL

DISTRICT JUDGE

SOUTHERN DISTRICT OF GEORGIA

1

The motion is docket number 1623 in the criminal case.

2

The motion is docket number 1638 in the criminal case.

3

The Court notes that even if Alvin's motion did not

amount to a successive petition, he is not entitled to relief
for the same reasons explained in prior Orders of the Court.
A motion for reconsideration cannot be used to relitigate old

matters or rehash the same arguments. (See Order of March 6,
2012, doc. 37, and Order of May 3, 2012, doc. 41.)
4

The motion is docket number 1629 in the criminal case.