Taylor v. USA -2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 3/7/13. (c/m 3/8/13 mps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DARRYL TAYLOR

*
Petitioner

v.

*

UNITED STATES OF AMERICA
Respondent

Civil Action No. RDB-13-655
Criminal Action No. RDB-07-307

*
***

MEMORANDUM OPINION
On February 28, 2013, Petitioner Darryl Taylor (“Taylor”) filed a “Notice to the Court in
the Entrust [sic] of a Fair and Just Consideration of Justice.” ECF No. 42. He filed an
“Addendum“ to the Notice on March 4, 2013, arguing that a Supreme Court ruling in March of
2012,1 seemingly provides him “newly discovered evidence” upon which to raise an Sixth
Amendment claim to attack his September 22, 2008 conviction in a timely manner. See 28
U.S.C. § 2255(f)(3).
This case requires the Court to determine whether Taylor’s post-judgment filing must be
construed as an unauthorized and successive § 2255 motion attacking his conviction because he
has previously filed a § 2255 application2 and has not obtained court of appeals certification for
the present filing as required under 28 U.S.C. § 2255(h) or, alternatively, a proper motion under
1

Taylor cites to Missouri v. Frye, 132 S. Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct.
1376 (2012). His interpretation is misguided. These cases discussed counsel’s obligation to negotiate
and to communicate plea offers in the context of ineffective assistance claims. The U.S. Supreme Court
has not stated the cases announced a new rule of law. These cases involved an application of the Sixth
Amendment right to counsel as defined in Strickland v. Washington, 466 U.S. 668 (1984). See In re
Perez, 682 F.3d 930, 933-34 (11th Cir. 2012).
2

Taylor has already concluded an unsuccessful collateral attack on his federal conviction
under § 2255. See Taylor v. United States, Civil Action RDB-11-82 (D. Md.). That Motion, raising
ineffective assistance of counsel, abuse of court’s discretion, and illegal sentence grounds, was dismissed
as time-barred on May 16, 2011, after briefing by Taylor and the Government. Taylor did not appeal that
determination. This constitutes a decision on the merits that renders future § 2255 motions challenging
the same conviction second or successive petitions under § 2244(b). See Villanueva v. United States, 346
F.3d 55, 61 (2d Cir. 2003).

Rule 60(b) of the Rules of Civil Procedure seeking a remedy for some defect in the collateral
review process itself. The answer to this question is important because it has jurisdictional
implications. If Taylor’s filing is construed as an unauthorized and successive § 2255 motion
directly attacking his conviction or sentence, then this court lacks jurisdiction to consider it.
United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003).
This filing represents another direct attack on Taylor’s federal conviction. Taylor is
asking this Court to correct an allegedly illegal and unconstitutional sentence. He claims that (1)
he received ineffective assistance of counsel in his criminal case because counsel did not file a
brief under Anders v. California, 386 U.S. 738 (1967); (2) his due process rights were violated
due to prosecutorial delay; (3) the indictment did not follow the procedures set out under the
Federal Rules of Criminal Procedure; (4) the indictment did not charge him with a cognizable
offense because the elements were not set out in the indictment; (5) his sentence was improperly
enhanced by incorrect information prepared in his pre-sentence report; (6) he is “actually
innocent” of his sentence enhancement; (7) the Court has the discretion to depart from the
mandatory minimum term under 18 U.S.C. § 3553(A) and may impose a lesser sentence; (8) his
sentence is illegal; (9) the Court abused its discretion when it did not advise him of the minimum
sentence it could have imposed; (10) the charge under 18 U.S.C. § 922(g)(1) was selectively
enforced against him; and (11) his illegal sentence cannot be waived due to substantive
constitutional violation. ECF No. 42.
The Court has examined the pleading to determine whether it is properly considered a
Rule 60(b) Motion and concludes that it should not. This Circuit has held that Rule 60(b)
motions should be treated as successive applications for post-conviction relief under 28 U.S.C. §
2255 when they present claims that are equivalent to additional habeas claims.” Hunt v. Nuth, 57
2

F.3d 1327, 1339 (4th Cir. 1995). Taylor does not raise a challenge to the integrity of the Court's
previous denial of his prior § 2255 application, rather his challenge implicates the validity of his
underlying conviction and sentence. See Williams v. Chatman, 510 F.3d 1290, 1295 (11th Cir.
2007) (contention that district court erred in refusing additional briefing was a proper subject of a
Rule 60(b) motion). Therefore, Taylor’s pleading is properly construed as a successive § 2255
motion. See Winestock, 340 F.3d at 207 (a motion directly attacking the inmate’s conviction or
sentence will usually amount to a successive application); see also Rodwell v. Pepe, 324 F.3d 66,
70 (1st Cir. 2003); Unites States v. Terrell, 141 Fed. App’x. 849, 850 (11th Cir. 2005) (motion
raising brand new substantive claims for relief on the merits and not presented in defendant’s
initial motion to vacate, were properly treated by district court as successive motion to vacate
sentence).
Successive § 2255 motions may not be filed absent authorization to do so from the Fourth
Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A) & 2255(h); In re Avery W. Vial, 115
F.3d 1192, 1197-98 (4th Cir. 1997) (en banc). Taylor has provided no evidence that he received
authorization to file a successive Motion to Vacate by the appellate court as required pursuant to
28 U.S.C. § 2244(b)(3)(A).3
An inmate who filed a Motion to Vacate has no absolute entitlement to appeal a district
court's denial of his Motion. See 28 U.S.C. § 2253(c) (1). “A certificate of appealability may
issue ... only if the applicant has made a substantial showing of the denial of a constitutional
3

The United States Court of Appeals for the Fourth Circuit has set forth instructions for
the filing of a "motion" to obtain the aforementioned authorization Order. The procedural requirements
and deadlines for filing the "motion" are extensive. Consequently, this Court has attached hereto a packet
of instructions promulgated by the Fourth Circuit which addresses the comprehensive procedure to be
followed should Petitioner wish to seek authorization to file a successive petition. It is to be emphasized
that Taylor must file the "motion" with the Fourth Circuit and obtain authorization to file his successive
petition before this Court may examine his claims.

3

right.” Id. at §2253(c) (2). The Defendant “must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282, (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484, (2000)), or
that “the issues presented were ‘adequate to deserve encouragement to proceed further,’” MillerEl v. Cockrell, 537 U.S. 322, 335-36, (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4
(1983).
When a district court dismisses a motion to vacate solely on procedural grounds, a
Certificate of Appealability will not issue unless the Petitioner can demonstrate both “(1) ‘that
jurists of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right’ and (2) ‘that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.’” Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001)
(quoting Slack, 529 U.S. at 484 (2000)). Taylor has not made the required showing and the
Court declines to issue a Certificate of Appealability. His Motion to Vacate will be dismissed
without prejudice for lack of jurisdiction. A separate Order shall be entered reflecting the
opinion set out herein.

Date: March 7, 2013

_______________/s/__________________
RICHARD D. BENNETT
UNITED SATATES DISTRICT JUDGE

4