MCINTOSH v. UNITED STATES OF AMERICA
ORDER Discussing Post Judgment 34 Motion - The Petitioner's 34 Motion is DENIED in part. The motion for relief from judgment shall be re-docketed as a new § 2255 action in the Indianapolis Division. The motion for relief from judg ment is denied in this action insofar as the petitioner seeks through such motion to reassert his claim of ineffective assistance of counsel. ***SEE ORDER***. Signed by Judge Jane Magnus-Stinson on 12/30/2013. (copy to Petitioner via US Mail) (JKS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DANNYE T. McINTOSH,
UNITED STATES OF AMERICA
Entry Discussing Post-Judgment Motion, Denying such Motion
in Part and Directing Treatment of the Remainder of such Motion
Petitioner McIntosh has filed a motion for relief from judgment pursuant to Rule 60(a)(6)
of the Federal Rules of Civil Procedure. As explained below a portion of that motion is a
genuine post-judgment motion and the remainder of that motion is a renewed challenge to his
sentence as an armed career criminal in No. IP 05-CR-119-03. This conclusion rests on the
following facts and circumstances:
Petitioner was sentenced on March 17, 2006, following his conviction for drug
offenses. His sentence was enhanced pursuant to USSG 4B1.1 based in part on his conviction for
Reckless Homicide in an Indiana state court.
McIntosh appealed his convictions and sentence. McIntosh’s attorney filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and, after providing McIntosh with a
period of time to respond, the attorney was permitted to withdraw and the appeal was then
dismissed as frivolous. United States v. Black and McIntosh, 2007 WL 959411 (7th Cir. March
30, 2007)(unpublished disposition).
On March 31, 2008, the petitioner filed a motion for relief pursuant to 28 U.S.C. §
2255. That action was docketed as No. 1:08-cv-422 and was assigned to the docket of Judge
Pratt. After briefing the § 2255 motion was denied on September 20, 2011.
The petitioner filed another challenge to his enhanced sentence using 28 U.S.C. §
2241. This was docketed as No. 2:12-cv-230-JMS-DKL and was dismissed on July 17, 2013, as
being outside the scope of the savings clause found at 28 U.S.C. § 28 U.S.C. § 2255(e).
The petitioner then filed his statement of plain error in sentencing on October 29,
2013. No. 1:08-cv-422 was reassigned to the docket of the undersigned. Applying the guidelines
prescribed in Gonzales v. Crosby, 545 U.S. 524,535 (2005), that statement was processed as a
new motion for relief pursuant to 28 U.S.C. § 2255. Once re-docketed as No. 1:13-cv-1866-JMSDML, the new § 2255 action was dismissed for lack of jurisdiction on November 26, 2013,
because the petitioner had not obtained permission of the Court of Appeals to file a second or
successive § 2255 motion.
On December 10, 2013, McIntosh filed a motion for relief from judgment
pursuant to Rule 60(b)(6). Rule 60(b)(6) is a catch-all provision that authorizes relief from
judgment for “any other reason that justifies relief.”
The Gonzales guidelines alluded to in paragraph 5 of this Entry are these: When
faced with a Rule 60(b) motion filed in response to the denial of a petition for habeas relief, the
district court must first determine whether the motion “should be treated as a second or
successive habeas petition [or whether] it should be treated as a ‘true’ 60(b) motion.” Spitznas v.
Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). A motion that “add[s] a new ground for relief” or
that “attacks the federal court's previous resolution of a claim on the merits” presents a claim for
habeas relief. Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). “That is not the case, however,
when a Rule 60(b) motion attacks, not the substance of the federal court’s resolution of a claim
on the merits, but some defect in the integrity of the federal habeas proceedings.” Id.
McIntosh’s motion filed on December 10, 2013, has aspects of each; that is, his
motion asserts irregularity in the resolution of No. 1:08-cv-422 and also re-asserts the claim that
he is entitled to relief under 28 U.S.C. § 2255 because of the ineffective assistance of counsel.
These aspects will be treated separately.
McIntosh challenges the integrity of the proceeding in No. 1:08-cv-422 because,
he asserts, Judge Pratt had a duty to recuse herself from that case. This challenge is far too late to
be effective. McIntosh did not raise this concern while the § 2255 motion was pending—a period
of nearly 40 months. He did not raise this concern in his request for a certificate of appealability.
He did not seek mandamus relief with respect to the matter. See, e.g., Johnson, 680 F.3d at 980
(“Because a party waives his [28 U.S.C.] § 455(a) recusal argument by failing to petition for a
writ of mandamus, it follows that he also waives it by failing altogether to raise it at the district
court level.” (quotation and citation omitted)); United States v. Diekemper, 604 F.3d 345, 351
(7th Cir. 2010) (“[R]ecusal under § 455(a) must be sought immediately through a writ of
mandamus or it is waived.”). In the same vein, but moving to the present, McIntosh has not
raised this concern within a reasonable time, and hence cannot obtain relief pursuant to Rule
60(b)(6). See Berwick Grain Co. v. Illinois Dep't of Agric., 189 F.3d 556, 560 (7th Cir. 1999)
(citations omitted); Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 610 (7th Cir. 1986). “What
constitutes a ‘reasonable time’ ultimately depends on the facts of each case including the reason
for delay, the practical ability of the litigant to have learned about the grounds of the judgment
earlier, and the degree of prejudice to the other parties.” Id. (quoting Rule 60). McIntosh is at
fault for not presenting his concern when he first became aware that No. 1:08-cv-422 was
assigned to Judge Pratt. His waiver of the matter precludes a finding of exceptional
circumstances. Reinsurance Co. of Am., Inc. v. Administratia Asigurarilor de Stat (Admin. of
State Ins.), 902 F.2d 1275, 1278 (7th Cir. 1990). Thus, the motion for relief from judgment [dkt
34] is denied insofar as through it McIntosh challenges the integrity of the disposition of his
motion for relief pursuant to 28 U.S.C. § 2255.
A post-judgment motion that attacks court's previous resolution of a claim on the
merits presents a claim for habeas relief. Ward v. Norris, 577 F.3d 925, 935 (8th Cir. 2009)
(“[W]e conclude that Ward’s Rule 60(b) and Rule 59 motions were improper because they were
not based on a procedural defect, but rather attacked previous habeas counsel’s omissions and
asked for a second opportunity to have the merits determined favorably.”)(citing Gonzales, 545
U.S. at 532 n.2). The disposition of the first § 2255 motion rejected the petitioner’s ineffective
assistance of counsel claim on the merits. The motion for relief from judgment filed on
December 10, 2013, reasserts that claim. Accordingly, the portion of the motion for relief from
judgment filed on December 10, 2013, in which the petitioner reasserts his claim of ineffective
assistance of counsel will be treated as a new motion for relief pursuant to 28 U.S.C. § 2255,
consistent with the following:
The motion for relief from judgment [dkt 34] shall be re-docketed as a new §
2255 action in the Indianapolis Division.
This Entry shall be re-docketed in the newly opened action, in which McIntosh
shall be designated as the petitioner and the United States shall be designated as the
respondent, and shall likewise be docketed with a copy of the motion for relief from
judgment in No. IP 05-cr-119-03-JMS-DKL.
The newly opened action shall be assigned a nature of suit code of 510 and a
cause of action code of 28:2255(a).
The newly opened action shall be shown as linked to both this action and to No.
The motion for relief from judgment [dkt. 34] is denied in this action insofar as
the petitioner seeks through such motion to reassert his claim of ineffective assistance of counsel.
IT IS SO ORDERED.
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Dannye T. McIntosh
Terre Haute – FCI
P.O. Box 33
Terre Haute, IN 47808
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