Bass v. United States of America
OPINION AND ORDER denying 11 Motion Pursuant To Rule Of Civil Procedure 60(b)(6); and granting 12 Motion to Dismiss Pursuant To Rule 60(b)(6). Order/NEF mailed to petitioner. Signed by Judge Mark W Bennett on 10/23/2017. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
ROY SHANNON BASS,
No. C 07-4024-MWB
(No. CR 05-4073-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 Roy Bass’s May 30, 2017, Motion Pursuant
To Rule Of Civil Procedure 60(b)(6) (Rule 60(b)(6) Motion). By way of background,
Bass pleaded guilty in this court, pursuant to a plea agreement, to a charge of conspiracy
to distribute 500 grams or more of a methamphetamine mixture within 1000 feet of an
elementary school, after a prior conviction of a felony drug offense, in violation of 21
U.S.C. § 846. On April 13, 2006, I sentenced Bass to the statutory mandatory minimum
sentence of 20 years (240 months) of imprisonment, and judgment entered accordingly
on April 19, 2006. Bass 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 April
11, 2007. In a Memorandum Opinion And Order Regarding Petitioner’s § 2255 Motion
(§ 2255 Ruling), filed July 21, 2009, I denied Bass’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 July 21, 2009, and no appeal followed.
Nearly eight years after denial of his § 2255 Motion, Bass filed his Rule 60(b)(6)
Motion. In response, on July 11, 2017, the respondent filed a Motion To Dismiss
Petitioner’s Motion Pursuant To Rule 60(b)(6), asserting that Bass’s Rule 60(b)(6)
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,
[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, Bass’s Rule 60(b)(6) 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)(6) 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, so that his purported Rule 60(b)(6)
Motion is a second or successive habeas petition subject to the requirements of 28 U.S.C.
Specifically, in his original § 2255 Motion, Bass asserted three
grounds for relief: (1) ineffective assistance of his counsel in failing to proceed with a
direct appeal of his conviction and sentence; (2) the prosecutor’s “reneging” on a plea
agreement by not filing a motion for downward departure based on his medical condition;
and (3) failure of the prosecution to file an “information” concerning a prior felony drug
conviction as required by 21 U.S.C. § 851 in order to increase his mandatory minimum
sentence. § 2255 Ruling (docket no. 8), 2. In his Rule 60(b)(6) motion, however, Bass
now asserts the following: (1) that his trial counsel was ineffective in failing to assert
that the federal court lacked jurisdiction, because, pursuant to the Tenth Amendment to
the United States Constitution, he was to go before a state judge, and could not be tried
in federal court without consent; (2) that the federal magistrate judge was committing a
crime by ordering him detained in federal custody; (3) that his trial counsel was
ineffective, because he was convicted of a “non-existent” federal crime, and his counsel
did not report the improper prosecution to the FBI; and (4) that he was not tried by a fair
and impartial jurist. Because Bass’s purported Rule 60(b)(6) 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 Bass’s Rule 60(b)(6)
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
obtain authorization from the court of appeals, or in its discretion, transfer the motion to
the court of appeals). Here, the respondent specifically seeks dismissal of the Rule
60(b)(6) Motion, on the ground that it is a second or successive habeas petition. Because
the Rule 60(b)(6) Motion was filed several years after Bass’s original § 2255 Motion, it
asserts entirely new claims, and I do not see the slightest chance that Bass’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.
Petitioner Roy Bass’s May 30, 2017, Motion Pursuant To Rule Of Civil
Procedure 60(b)(6) (docket no. 11) 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); and
For the reasons stated in the previous paragraph, the respondent’s July 11,
2017, Motion To Dismiss Petitioner’s Motion Pursuant To Rule 60(b)(6) (docket no. 12)
FURTHERMORE, I conclude that Bass has failed to make a substantial showing
that the conclusion that his Rule 60(b)(6) 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 Bass’s Rule 60(b)(6) 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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