Rank v. United States of America
OPINION and ORDER: Denying 15 Pro Se Motion Under Federal Rules of Civil Procedure Rule 60(b)(6) and (d)(1): A certificate of appealability is denied as to any argument or contention in Petitioner's motion. Signed by Judge Mark W Bennett on 10/23/17. (Copy w/NEF to pro se Petitioner) (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
RANDALL LEE RANK,
No. C 07-3075-MWB
(No. CR 06-3011-MWB)
UNITED STATES OF AMERICA,
OPINION AND ORDER
MOTION PURSUANT TO RULE OF
CIVIL PROCEDURE 60(b)(6)
This case is before me on petitioner Randall Rank’s July 27, 2017, Motion Under
Federal Rules Of Civil Procedure Rule 60(b)(6) And (d)(1) (Rule 60(b) Motion). I find
it helpful to provide some background to that motion.
On July 17, 2006, Rank pleaded guilty in this court, pursuant to a plea agreement,
to three counts of a five-count indictment. Somewhat more specifically, he pleaded guilty
to conspiracy to manufacture and distribute 50 grams or more of actual methamphetamine
and to distribute and possess with intent to distribute 500 grams or more of a mixture or
a substance containing a detectable amount of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), 841 (b)(1)(A), 841(a)(1), 841(b)(1)(A) and 846, from about 2002
through September of 2004 (Count 1); manufacturing and attempting to manufacture 5
grams or more of pure methamphetamine during July of 2004 in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B) and 846 (Count 2); and manufacturing and attempting to
manufacture 5 grams or more of pure methamphetamine during September of 2004 in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846 (Count 3). Prior to Rank’s
guilty plea, the prosecution filed a Notice Of Intent To Seek Enhanced Penalties Pursuant
To 21 U.S.C. § 851 (§ 851 Information), seeking enhancement of Rank’s mandatory
minimum sentence, listing two prior felony drug offenses, one in Minnesota and one in
Iowa, but seeking mandatory minimum sentences on the charged offenses based on only
one prior conviction. On October 25, 2006, I sentenced Rank to the enhanced statutory
mandatory minimum sentence of 20 years (240 months) of imprisonment, based on one
prior felony drug conviction,1 and judgment entered accordingly on October 30, 2006.
Rank filed a Pro Se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aide, Or
Correct Sentence By A Person In Federal Custody (§ 2255 Motion) on October 29, 2007,
but never filed a supporting brief. In a Memorandum Opinion And Order Regarding
Petitioner’s § 2255 Motion (§ 2255 Ruling), filed October 14, 2009, I denied Rank’s
§ 2255 Motion in its entirety and concluded that no certificate of appealability would
issue for any claim or contention in this case. Judgment entered accordingly on October
14, 2009. Notwithstanding my denial of a certificate of appealability in both my § 2255
Ruling and in response to a subsequent Motion For Certificate Of Appealability, Rank
filed a Notice Of Appeal on December 11, 2009. The Eighth Circuit Court of Appeals
also denied a certificate of appealability and dismissed Rank’s appeal on January 21,
2010, and its mandate issued on March 12, 2010.
More than seven years after dismissal of the appeal of the denial of his § 2255
Motion, Rank filed his Rule 60(b) Motion. I conclude that Rank’s Rule 60(b) Motion is
a second or successive petition for habeas relief filed without permission of the Eighth
Circuit Court of Appeals.
As the Eighth Circuit Court of Appeals has explained,
Again, notwithstanding that the § 851 Information identified two prior felony
drug convictions, it sought the enhancement of the mandatory minimum sentences for
only one prior felony drug conviction. The plea agreement, likewise, refers to
enhancement on the basis of only one prior felony drug conviction, but does not identify
which one. The presentence investigation report (PSIR) also does not specifically identify
which one prior felony drug conviction was the basis for the § 851 enhancement. The
PSIR does note that “the defendant could have been subjected to mandatory minimum of
life rather than 20 years because it appears he has two prior felony drug convictions.”
PSIR, ¶ 79.
[B]efore filing a second or successive petition in district court,
a habeas applicant must receive an order authorizing it from
the court of appeals. [28 U.S.C.] § 2244(b)(3). Under the
statutory scheme, a second or successive habeas motion filed
by someone in federal custody must also “be certified as
provided in section 2244 by a panel of the appropriate court
of appeals.” 28 U.S.C. § 2255(h).
United States v. Lee, 792 F.3d 1021, 1023 (8th Cir. 2015). Furthermore, “[i]t is wellestablished that inmates may not bypass the authorization requirement of 28 U.S.C.
§ 2244(b)(3) for filing a second or successive § 2254 or § 2255 action by purporting to
invoke some other procedure.” United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir.
Specifically, as to Rule 60(b) motions, the Eighth Circuit Court of Appeals has
The Supreme Court has decided that AEDPA’s
procedural requirements for second or successive habeas
petitions apply to motions for relief from a judgment filed
under Federal Rule of Civil Procedure 60(b). Gonzalez [v.
Crosby], 545 U.S. [524,] 531, 125 S.Ct. 2641 [(2005)]. The
Gonzalez Court explained that Rule 60(b) motions often
contain claims which are “in substance a successive habeas
petition and should be treated accordingly.” 545 U.S. at 530–
31, 125 S.Ct. 2641. The Court gave examples of such
motions, one being an assertion that owing to excusable
neglect “the movant’s habeas petition had omitted a claim of
constitutional error” and an accompanying request to present
the claim. Id., citing Harris v. United States, 367 F.3d 74,
80–81 (2d Cir.2004). Another example is a motion attacking
a “previous resolution of a claim on the merits.” 545 U.S. at
532, 125 S.Ct. 2641 (emphasis in original).
A Rule 60(b) motion is not treated as second or
successive under AEDPA, however, if it does not raise a
merits challenge to the resolution of a claim in a prior habeas
proceeding, but instead attacks “some defect in the integrity
of the federal habeas proceedings.” Gonzalez, 545 U.S. at
532–33, 125 S.Ct. 2641. Thus, the Rule 60(b) motion in
Gonzalez which sought to challenge a statute of limitations
ruling which had prevented review of an initial habeas
petition, did not require precertification under § 2244(b)(3).
Id. at 533, 538, 125 S.Ct. 2641.
Lee, 792 F.3d at 1023.
Here, Rank’s Rule 60(b) Motion does not merely attack some defect in the integrity
of the federal habeas proceedings, which would be an argument that could be properly
asserted in a Rule 60(b) motion. Id. Rather, his Rule 60(b) Motion asserts claims of
constitutional error in his underlying conviction that he never raised in his § 2255 Motion,
but now wishes to present to the court, on the ground that his original pro se motion
ineffectively presented the issues. I conclude that his Rule 60(b) Motion presents entirely
new claims, so that his purported Rule 60(b) Motion is a second or successive habeas
petition subject to the requirements of 28 U.S.C. § 2244(b)(3). Id.
Specifically, in his original § 2255 Motion, Rank asserted three grounds for relief:
(1) ineffective assistance of his trial counsel in failing to object to criminal history points,
because “some of my convictions were related”; (2) ineffective assistance of his trial
counsel in failing to object to mandatory application of the Sentencing Guidelines; and
(3) ineffective assistance of his trial counsel in failing to object to his sentence on the
basis that some of the drugs at issue were “impure.” § 2255 Ruling, 10-12. In his Rule
60(b) Motion, however, Rank now “tries to clarify th[e] point [that some of his
convictions were related], and the basis for his 60(b) motion, [to be that] he alleged then
and now, that his counsel failed to research one very important issue, that being whether
his prior conviction used as the basis for a 21 U.S.C. § 851 enhancement did in fact
qualify, thus allowing the Court to base its sentence on an unqualifying prior [conviction]
that raised his mandatory sentence to 20 years.” Rule 60(b) Motion, 2. Somewhat more
specifically, he argues that his prior Iowa conviction, used to enhance his mandatory
minimum, was not a final conviction, because his sentence had been deferred, and it did
not become final until his probation was revoked on November 21, 2006, after his guilty
plea on his federal drug charges. He also now contends that his Iowa conviction formed
part of the same course of conduct as the federal offense. See, e.g., id. at 2-3.
There is no indication, however, in Rank’s original § 2255 Motion that he was
challenging the § 851 enhancement, rather than the calculation of his criminal history for
purposes of his advisory guidelines sentence, such that his Rule 60(b) Motion is somehow
a “clarification” of his § 2255 Motion. Certainly, there is not the merest hint that the
nature of the original challenge was that the prior Iowa conviction could not qualify for
a § 851 enhancement because it resulted in a “deferred” sentence and his probation was
not revoked until after his federal conviction2 or because the prior Iowa conviction was
“related” to the charged federal offense rather than “related” to other convictions in his
criminal history. Thus, because Rank’s purported Rule 60(b) Motion asserts different
and entirely new claims for habeas relief, it is a second or successive habeas motion that
must “be certified as provided in section 2244 by a panel of the appropriate court of
appeals.” 28 U.S.C. § 2255(h); Lee, 792 F.3d at 1023.
Under the circumstances, I have discretion either to dismiss Rank’s Rule 60(b)
Motion or transfer it to the court of appeals for consideration of precertification. Boyd
v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (per curiam) (if Rule 60(b) motion
is actually a successive habeas petition, the district court should dismiss it for failure to
Even if that argument could now be considered, it is contrary to United States v.
Funchess, 422 F.3d 698 (8th Cir. 2005). In Funchess, the court rejected the defendant’s
argument that a deferred judgment under Iowa law does not “count” for purposes of a
§ 851 enhancement, because it was not “final.” The court rejected that argument,
because it “ha[d] held that even expunged prior deferred judgments in Iowa may be used
for purposes of federal sentencing.” Funchess, 422 F.3d at 703. Rank’s prior Iowa
conviction was not even expunged; rather, he admits that his probation on that prior
conviction was revoked, because of subsequent convictions.
obtain authorization from the court of appeals or, in its discretion, transfer the motion to
the court of appeals). Here, because the Rule 60(b) Motion was filed several years after
Rank’s original § 2255 Motion, it asserts entirely new claims, and I do not see the
slightest chance that Rank’s second or successive motion meets the requirements for
certification pursuant to 28 U.S.C. § 2255(h), because it is not based on newly discovered
evidence or a new rule of constitutional law, I conclude that dismissal is appropriate.
THEREFORE, petitioner Randall Rank’s July 27, 2017, Motion Under Federal
Rules Of Civil Procedure Rule 60(b)(6) And (d)(1) (docket no. 15) is denied and
dismissed on the ground that it is a second or successive petition for habeas relief filed
without the required precertification by the Eighth Circuit Court of Appeals pursuant to
28 U.S.C. § 2244(b)(3).
FURTHERMORE, I conclude that Rank has failed to make a substantial showing
that the conclusion that his Rule 60(b) Motion is a second or successive habeas petition
is debatable among reasonable jurists, that a court could resolve any of the issues raised
in that motion differently, or that any question raised in that motion deserves further
proceedings. Consequently, a certificate of appealability is denied as to any argument or
contention in Rank’s Rule 60(b) Motion. See 28 U.S.C. § 2253(c)(1)(B); Miller–El v.
Cockrell, 537 U.S. 322, 335-36 (2003); Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
IT IS SO ORDERED.
DATED this 23rd day of October, 2017.
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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