Cheney v. United States of America

Filing 28

ORDER 25 Pro Se Request to Entertain Rule 60(b)(6) Motion is denied and dismissed in its entirety. Signed by Judge Mark W Bennett on 5/22/2012. (copy w/nef mailed to non-ecf filer) (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

JEFF CHENEY,
Petitioner,

No. C 10-3031-MWB
No. CR 07-3010-MWB

vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER REGARDING
PETITIONER’S PRO SE REQUEST
TO ENTERTAIN RULE 60(b)(6)
MOTION

I. INTRODUCTION
This case is before me on petitioner Jeff Cheney’s Pro Se Request To Entertain Rule
60(b)(6) Motion (docket no. 25) (Motion). Prior to filing this Motion, Cheney filed a Pro
Se Notice Of Appeal (docket no. 18) to the United States Court of Appeals for The Eighth
Circuit, on August 24, 2011. On December 23, 2011, the Court of Appeals entered a
Judgment (docket no. 22) denying Cheney’s application for a certificate of appealability.
Further, on February 7, 2012, the Court of Appeals entered an Order (docket no. 23)
denying Cheney’s petition for rehearing of the application for a certificate of appealability.
Cheney then filed this Motion on April 19, 2012. In his Motion, Cheney claims that my
previous ruling, of August 11, 2011, denying his Motion Under 28 U.S.C. § 2255, should
be reconsidered based on a letter from the Bureau of Prisons received by Cheney in the
process of Cheney’s pursuit of an administrative remedy. See Motion at 1-2. Cheney also
seeks to have my prior ruling reconsidered by arguing that the application of a sentencing
enhancement in his case was in violation of the United States Constitution. See Motion at
5-6. Cheney seeks to have my previous Memorandum Opinion and Order and the

subsequent Judgment (docket nos. 16 & 17), denying him § 2255 relief, vacated. Cheney
seeks the relief he first sought in his § 2255 motion, specifically, additional credit for time
served and/or to have application of the sentencing enhancement overturned. See Motion
at 1-2.
The respondent filed a Response To Petitioner’s Pro Se Request To Entertain Rule
60(B)(6) Motion (docket no. 26), on April 25, 2012, arguing first, that Cheney’s Motion
is untimely. See Response at 2-3. Respondent also argues that Cheney’s Motion should
be denied on the ground that Cheney has not demonstrated “extraordinary circumstances
justifying the reopening of a final judgment” because the record indicates that Cheney
received 77 days of credit for time served.

See Response at 4-5. Respondent further

argues that Cheney’s claims regarding the enhancement were raised and rejected in
Cheney’s prior § 2255 Motion. See Response at 4.
II. LEGAL ANALYSIS
Rule 60(b) of the Federal Rules of Civil Procedure allows for relief from a
judgment or order under certain prescribed circumstances and applies to habeas
proceedings to the extent it is not inconsistent with the Anti-Terrorism and Effective Death
Penalty Act (AEDPA). See Ward v. Norris, 577 F.3d 925, 932 (8th Cir. 2009); see also
28 U.S.C. § 2255; FED. R.CIV.P. 60(b); FED.R.CIV.P. 81(a)(4). However, if a motion
pursuant to Rule 60(b) is actually a successive § 2255 motion, it requires certification by
a court of appeals before filing. See 28 U.S.C. §§ 2244(b)(3)(A). “It is well-established
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. 2005); see also
United States v. Patton, 309 F. 3d 1093, 1094 (8th Cir. 2002) (per curiam) (inmates may
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not bypass authorization requirement of § 2255 by purporting to invoke some other
procedure); Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (per curiam) (if a
Rule 60(b) motion is actually a successive habeas petition, the district court should deny
it for failure to obtain authorization from the court of appeals, or in its discretion, transfer
the motion to the court of appeals).
When presented with a purported Rule 60(b) motion following the dismissal of a
previous habeas petition, district courts should conduct a brief initial inquiry to determine
whether the allegations in the Rule 60(b) motion in fact amount to a second or successive
collateral attack under 28 U.S.C. § 2255. See Boyd, 304 F.3d at 814.
A Rule 60(b) motion seeking relief from the denial of a § 2255 motion and raising
claims of a postconviction relief nature should be construed as a successive § 2255 motion.
See Guinan v. Delo, 5 F.3d 313, 316-17 (8th Cir. 1993); see also Blair v. Armontrout, 976
F.2d 1130, 1134 (8th Cir. 1992). A Rule 60(b) motion is a second or successive habeas
corpus application if it contains a claim. Ward, 577 F.3d at 933. When no “claim” is
presented, there is no basis for contending that the Rule 60(b) motion should be treated like
a habeas corpus application. Gonzalez v. Crosby, 545 U.S. 524, 533 (2005). For the
purpose of determining whether the motion is a habeas corpus application, “claim” is
defined, as applicable to the facts of this case, as an attack on the “federal court’s previous
resolution of the claim on the merits.” See Ward, 577 F.3d at 933. “On the merits” refers
“to a determination that there exist or do not exist grounds entitling a petitioner to habeas
corpus relief . . . .” Id. When a Rule 60(b) motion presents a claim, it must be treated
as a second or successive habeas petition under AEDPA. Id.
No claim is presented if the motion attacks “some defect in the integrity of the
federal habeas proceedings.” See Gonzalez, 545 U.S. at 532. “Likewise, a motion does
not attack a federal court’s determination on the merits if it ‘merely asserts that a previous
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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.’” Ward, 577
F.3d at 933 (quoting Gonzalez, 545 U.S. at 530). “The Supreme Court has ‘note[d] that
an attack based on the movant’s own conduct, or his habeas counsel’s omissions, ordinarily
does not go to the integrity of the proceedings, but in effect asks for a second chance to
have the merits determined favorably.’” Id. (quoting Gonzalez, 545 U.S. at 532 n.5).
Although an assertion of ineffective assistance of habeas counsel may be characterized as
a defect in the integrity of the habeas proceeding, it ultimately seeks to assert or reassert
substantive claims with the assistance of new counsel. Id. at 932. Moreover, the AEDPA
specifically prohibits such grounds for relief. Id.
A. Timeliness
Respondent argues that Cheney’s Motion is not timely filed and should be
dismissed. Response at 2-3. A motion under Rule 60(b) must be made within a reasonable
time - and if based on mistake, inadvertence, surprise, excusable neglect, newly discovered
evidence or an allegation of fraud, misrepresentation, or misconduct by an opposing party,
no more than a year after the entry of the judgment or order or the date of the proceeding.
See Fed. R. Civ. P. 60(c).
Cheney filed this Motion on April 19, 2012, challenging my order denying him
relief on his prior motion pursuant to 28 U.S.C. § 2255, which was entered on August 11,
2011. Thus, his Motion was filed well within one year. See Motion at 2. Cheney’s
Motion is, therefore, timely.

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B. Newly Discovered Evidence
“Motions under Rule 60(b)(2) on the ground of newly discovered evidence are
viewed with disfavor.” Haigh v. Gelita USA, Inc., 632, F.3d 464, 472 (8th Cir. 2011).
In order to succeed on such grounds, Cheney must show (1) the evidence was discovered
after trial; (2) he exercised due diligence in discovering it; (3) the evidence is material and
not merely cumulative or impeaching; and (4) the evidence is such that a new trial would
probably produce a different result. Id.
Cheney claims that a letter from the Bureau of Prisons constitutes newly discovered
evidence in his case. See Motion at 1. It appears that Cheney’s position in this regard is
based on a misunderstanding of the difference between calculating credit for time served
and the provisions of U.S.S.G. § 5G1.3 (c) providing that a court may run the sentence
for an undischarged term of imprisonment concurrently, partially concurrently, or
consecutively to the prior undischarged term. In this case, I determined, at sentencing,
that it was appropriate, pursuant to the provisions of U.S.S.G. § 5G1.3, specifically
pursuant to U.S.S.G. § 5G1.3(c), to run Cheney’s sentence in the instant offense
concurrently to his undischarged term of imprisonment. See Sent. Trans. at 41; PSIR ¶
92. While the initial Judgment (Cr. Docket no. 129), in Cheney’s case did not reflect that
the sentences were to run concurrently, an Amended Judgement In A Criminal Case (Cr.
Docket no. 211) was filed on June 22, 2011, correcting the sentence to reflect that it was
to run concurrently with the sentence in Iowa Case No. FECR326353. As a result of this
amendment, the Bureau of Prisons updated Cheney’s sentence computation to take into
account the change. See Motion, Ex. 1. There is no evidence to support the position that
the Bureau of Prisons has failed to administer the sentence as ordered. See United States
v. Wilson, 503 U.S. 329, 331-35 (1992) (after district court sentences federal offender,
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Attorney General, through Bureau of Prisons, has responsibility for administering
sentence, including awarding credit for time served on federal sentence); Sisemore v.
Outlaw, 363 Fed. Appx. 424 (8th Cir. 2010) (citing Coloma v. Holder, 445 F.3d 1282,
1293-84 (11th Cir. 2006) (per curiam) (district court’s order that prison term should run
concurrently with prison term already being served did not mean the two sentences had the
same starting date; federal sentence cannot commence prior to date it is pronounced, even
if made concurrent with sentence already being served)). The statement of the Bureau of
Prisons that “an adjustment to the term under the provisions of U.S. Sentencing Guidelines
§ 5G1.3, can only be performed by the federal sentencing court” (Motion, Ex. 1), is not
newly discovered evidence, but merely a statement regarding what they believe the law to
be, and is in accordance with the sentencing decision previously made in Cheney’s case.
Arguably, such a statement by the Bureau of Prisons, in other circumstances, might have
been newly discovered evidence if Cheney had been sentenced pursuant to U.S.S.G.
§5G1.3(b), requiring a court to adjust a sentence in the event that a period of credit will
not be given by the Bureau of Prisons, but here, Cheney was sentenced pursuant to
U.S.S.G. § 5G1.3(c), and the letter from the Bureau of Prisons does not constitute
material newly discovered evidence.
The evidence that Cheney has produced to support his claim is neither material nor
would it lead to a different result; therefore, his Motion, on this ground, is denied. See
Haigh, 632, F.3d at 472.
C. Merely Successive
The remainder of Cheney’s claims, including that he was subjected to multiple
punishment for the same conspiracy and that he suffered double jeopardy, are claims that
he raised and argued unsuccessfully in his previous §2255 Motion and, therefore, are
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denied and dismissed for failure to obtain authorization form the Eighth Circuit Court of
Appeals for a successive § 2255 motion. See United States v. Lambros, 404 F.3d 1034,
1036 (8th Cir. 2005) (citing Boyd v. United States, 304 f.3d 813, 814 (8th Cir. 2002) (per
curiam)).
III. CONCLUSION
Upon the foregoing, Cheney’s April 19, 2012, Pro Se Request To Entertain Rule
60(b)(6) Motion (docket no. 25) is denied and dismissed in its entirety.
IT IS SO ORDERED.
DATED this 22nd day of May, 2012.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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