Rhodes v. United States of America

Filing 40

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Petitioner's Motion for Relief from Judgment and Order Under Rule 60(b)(6) 35 is DENIED to the extent the motion is treated as a Rule 60(b) motion, and DISMISSED for lack of jurisdiction as a second or successive habeas petition in allother respects. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability as Petitioner has not made a substantial showing of the denial of a federal constitutional right.. Signed by District Judge John A. Ross on 3/18/19. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DWIGHT RHODES,
Petitioner,

v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:15-CV-00432 JAR

MEMORANDUM AND ORDER
This closed federal habeas matter under 28 U.S.C. § 2255 is before the Court on
Petitioner Dwight Rhodes ("Rhodes")'s Motion for Relief from Judgment and Order Under Rule
60(b)(6). (Doc. No. 35). Respondent filed its Response to Court Order (Doc. No. 39); Rhodes did
not file a reply and the time for doing so has passed. The motion is therefore fully briefed and
ready for disposition.

Background
On October 20, 2011, a federal grand jury returned a four-count indictment against
Rhodes, charging him with (1) possession of marijuana in violation of 21 U.S.C. § 844(a) (Count
I); (2) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(l) (Count II);
(3) using and maintaining a premises for the purpose of distributing and using a controlled
substance in violation of 21 U.S.C. § 856(a)(l) (Count III); and (4) possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count IV). United
States v. Rhodes, No. 4:11-CR-00441-JAR-1 (E.D. Mo.). After a two-day jury trial on June 25
and 26, 2012, Rhodes was found guilty on all four counts.

On September 27, 2012, Rhodes was sentenced to concurrent terms of 12 months on
Count I and 94 months on Counts II and III, and a consecutive term of 60 months on Count IV,
for a total term of imprisonment of 154 months. On appeal to the Eighth Circuit, Rhodes argued
that the trial court erred in denying his motion for judgment of acquittal on Count III because the
evidence was insufficient to prove that his purpose in using or maintaining the premises in
question was to distribute a controlled substance. The Eighth Circuit rejected his argument and
affirmed this Court's judgment and sentence on September 13, 2013. United States v. Rhodes,
730 F.3d 727 (8th Cir. 2013). His petition for writ of certiorari was denied by the United States
'

Supreme Court on March 10, 2014. Rhodes v. United States, 134 S. Ct. 1525 (2014).
On March 9, 2015, Rhodes timely moved to vacate his sentence under 28 U.S.C. § 2255
on the grounds that his counsel was ineffective in the following respects: (1) by failing to raise
on direct appeal whether or not the District Court erred in denying his motion to suppress
evidence; (2) by failing to raise on direct appeal whether or not the District Court erred in
denying his motion in limine; (3) by failing to perform proper pre-trial investigation; (4) by
failing to call witnesses at trial and at the suppression hearing; (5) by failing to argue at the
suppression hearing that calls made to the police by his former girlfriend were false; and (6) by
failing to challenge the validity of the search warrant. On September 11, 201 7, Rhodes filed a
motion to amend his § 2255 motion on the grounds that 18 U.S.C. § 924 is "void for vagueness"
and urged the Court to "hold" his § 2255 motion pending the appeal in Dimaya v. Lynch, 803
F.3d 1110 (9th Cir. 2015), and to consider reducing the underlying offense pursuant to Dean v.
U.S., 137 S. Ct. 1170 (2017).
The Court denied Rhodes' § 2255 motion and his motion to amend, finding that the
decisions in Dimaya and Dean were inapplicable to his case. (Doc. No. 26, 27). The Court also

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declined to issue a certificate of appealability because he could not make a substantial showing
of the denial of a constitutional right. On March 6, 2018, Rhodes appealed the Court's order
denying his § 2255 motion; on June 25, 2018, the Eighth Circuit denied Rhodes' application for
a certificate of appealability and dismissed his appeal. Rhodes v. United States, No. 18-1543,
2018 WL 4354411 (8th Cir. June 25; 2018).
On July 24, 2018, Rhodes moved to reopen this closed § 2255 case pursuant to Fed. R.
Civ. P. 60(b)(6). In· support of his motion, Rhodes focuses on the first sentence in the following
footnote to the Eighth Circuit's opinion affirming his conviction and sentence:
Neither counsel addresses how the§ 856(a)(l) count impacted Rhodes's sentence, which
was within the advisory guidelines range. The PSR grouped the count with a firearm
offense that had a higher offense level. See U.S.S.G. § 3Dl.3(a). Defense counsel argued
to the district court that acquittal on this count "would also necessitate the dismissal of
Count IV," a second firearm offense that carried a mandatory, consecutive 60-month
sentence. But this was not argued on appeal.
Rhodes, 730 F.3d at 782, fn. 2. Rhodes argues this is "proof of counsels' [sic] ineffective
assistance in violation of Strickland ... and structural error in violation of Fifth Amendment Due
Process Clause." Rhodes further argues that counsel's failure to address the grouping of closely
related counts as instructed by Section 3Dl.3 of the Sentencing Guidelines caused his sentence
to be "inadequate" and unconstitutional. Respondent opposes the motion, arguing that it is in fact
a second or successive collateral attack under § 2255 and should be dismissed for failure to
obtain authorization from the Eighth Circuit.
Standard of review
l

A court may grant relief under Rule 60(b)(6) for "any other reason that justifies relief'
when a motion is made "within a reasonable time." Fed. R. Civ. P. 60(b)(6). Petitioners
sometimes request relief under Rule 60(b) when the motion is more properly characterized as a
successive § 2254 petition. See,~. Boyd v. United States, 304 F.3d 8P, 814 (8th Cir. 2002).

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However, a state prisoner may file a second or successive motion under § 2254 only after
obtaining authorization to do so from the appropriate United States Court of Appeals. 28 U.S.C.
§ 2244(b)(3). Where a prisoner files a Rule 60(b) motion following the dismissal of a habeas
petition, the· district court must 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. § 2254. Boyd, 304 F.3d at
814. If the Court determines a Rule 60(b) motion to be a second or successive habeas petition,
the Court must dismiss it for failure to obtain authorization from the Court of Appeals, or
alternatively transfer the motion to the Eighth Circuit. Id. "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 . ; . action by purporting to invoke some other procedure." United States v.
Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005).
A Rule 60(b) motion is considered a second or successive habeas petition if it contains a
"claim." Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009). A Rule 60(b) motion contains a
claim if it "seeks to add a new ground for relief' or "attacks the federal court's previous
resolution of a claim on the merits." Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). A petitioner
may use a Rule 60(b) motion to challenge a procedural ruling of the habeas court or a defect in
the integrity of his federal habeas proceedings, but a motion attacking the merits of the denial of
a claim in a prior habeas proceeding or asserting or reasserting a federal basis for relief from the
underlying conviction must be treated as a second or successive section habeas petition. Id. at
530-32.
The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244, imposes
three requirements on successive habeas petitions:
First, any claim that has already been adjudicated in a previous petition must be
dismissed.§ 2244(b)(l). Second, any claim that has not already been adjudicated must be

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dismissed unless it relies on either a new and retroactive rule of constitutional law or new
facts showing a high probability of actual innocence. § 2244(b)(2). Third, before the
district court may accept a successive petition for filing, the court of appeals must
determine that it presents a claim not previously raised that is sufficient to meet §
2244(b)(2)'s new-rule or actual-innocence provisions. § 2244(b)(3).
Gonzalez, 545 U.S. at 529. While Rule 60(b) allows a habeas petitioner to seek relief from final
judgment and request reopening of his case, the rule only applies to the extent that it is consistent
withAEDPA. Id. at 529.
Discussion

In support of his motion, Rhodes argues that his counsel's failure to address how the §
856(a)(l) Count impacted his sentence was deficient under Strickland and rendered the
sentencing process fundamentally unfair in violation of his substantive and procedural rights.

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Respondent responds that Rhodes is seeking to vacate his conviction and sentence rather than
correct an irregularity in his earlier habeas proceedings. As such, his motion is actually a
successive§ 2255 motion and must be dismissed.
After careful review of the Court's previous decision on Rhodes' habeas petition and the
present Rule 60(b)(6) motion, the Court concludes that Rhodes' motion is improper because it
seeks to assert or reassert a federal basis for relief from his conviction. 1 To the extent he seeks to
bring new claims for habeas relief, Rhodes must obtain leave from the Eighth Circuit Court of
Appeals before he can assert those claims in this Court. 28 U.S.C. § 2244(b)(3)(A). Because
Rhodes did not obtain advance authorization from the Eighth Circuit Court of Appeals to file his
motion, as required by AEDPA, the Court will dismiss it. See Boyd, 304 F.3d at 814.
Even if this Court were to construe Rhodes' motion under Rule 60(b)( 6) and not as a
successive § 2254 petition, he is still not entitled to relief. Relief under Rule 60(b)(6) is only
1

Even if it were objectively unreasonable not to challenge the grouping of counts for sentencing
purposes, and the Court does not suggest it was, Rhodes cannot show that his sentence would have been
different had such a challenge been made since it was within the advisory guideline range.

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available in "extraordinary circumstances," Gonzalez, 545 U.S. at 535, and Rhodes has failed to
present any such circumstances.
Accordingly,

IT IS HEREBY ORDERED that Petitioner's Motion for Relief from Judgment and
Order Under Rule 60(b)(6) [35] is DENIED to the extent the motion is treated as a Rule 60(b)
motion, and DISMISSED for lack of jurisdiction as a second or successive habeas petition in all
other respects.

IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability
as Petitioner has not made a substantial showing of the denial of a federal constitutional right.

J~
UNITED STATES DISTRICT JUDGE
Dated this 18th day of March, 2019.

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