NELSON v. UNITED STATES OF AMERICA

Filing 30

OPINION. Signed by Judge Noel L. Hillman on 10/14/2020. (tf, n.m.)

Case 1:17-cv-05083-NLH Document 30 Filed 10/15/20 Page 1 of 8 PageID: 291

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
TERRELLE NELSON,
:
:
Petitioner,
:
Civ. No. 17-5083 (NLH)
:
v.
:
OPINION
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
___________________________________:
APPEARANCES:
Terrelle Nelson, No. 70270-050
FCI Fairton
P.O. Box 2000
Fairton, NJ 08320
Petitioner pro se
Jacqueline Carle, Esq.
Office of the U.S. Attorney
401 Market Street
Camden, NJ 08101
Counsel for Respondent
HILLMAN, District Judge
The Court dismissed Petitioner Terrelle Nelson’s motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. §
2255 on September 6, 2019.

ECF No. 22.

He now moves for

reconsideration of that order under Federal Rule of Civil
Procedure 60(b)(3).

ECF No. 28. 1

For the reasons that follow,

the Court will deny the motion.
1

Petitioner filed a motion under Rule 60(b)(6) on May 11, 2020,
ECF No. 27, but his more recent motion under Rule 60(b)(3) asked
1

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I.

BACKGROUND
On February 10, 2017, Terrelle Nelson pled guilty to count

two of a superseding indictment that charged him with being a
felon in possession of a firearm, 18 U.S.C. § 922(g)(1).

United

States v. Nelson, 16-cr-397 (D.N.J.) (ECF Nos. 31 (indictment),
36 (change of plea minute entry), 37 (plea agreement), 38
(application to enter plea of guilty)).

As stated in the

Court’s decision denying Petitioner’s § 2255 motion:
The plea agreement contained certain stipulations
regarding Petitioner’s prior conduct. Specifically, the
agreement stipulated that the base offense level would
be a 24 because Petitioner committed the instant offense
subsequent to sustaining at least two felony convictions
for a crime of violence or a controlled substance
offense, including four (4) convictions for possession
with intent to distribute a controlled dangerous
substance pursuant to N.J.S.A. 2C:35-5.
In addition,
the
agreement
stipulated
that
special
offense
characteristic 2K2.1(b)(6)(B) applies to Petitioner
because he used or possessed a firearm or ammunition in
connection with another felony offense, distribution of
a controlled dangerous substance on June 17, 2016, the
other count contained in the Superseding Indictment.
Given the stipulations, the agreement provides that
Petitioner’s adjusted offense level is a 28.
ECF No. 21 at 2-3 (internal citations omitted).
The Court sentenced Petitioner to 84 months imprisonment,
three years of supervised release with the special conditions of
alcohol and drug testing and treatment, life skills and

the Court to “cancel the old one and to amend a new one!” ECF
No. 28 at 1. At Petitioner’s request, the Court will dismiss
the first motion and rule on the second one.
2

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education, and support of dependents.
notice of appeal.

Petitioner did not file a

See ECF No. 4.

Petitioner filed his § 2255 motion on July 12, 2017 and
supplemented it on August 7, 2017.

ECF Nos. 1 & 4.

denied the motion on September 6, 2019.

The Court

ECF No. 22.

Petitioner

appealed to the United States Court of Appeals for the Third
Circuit.

ECF No. 23.

The Third Circuit denied a certificate of

appealability on January 21, 2020.

ECF No. 26.

Petitioner filed a motion for reconsideration under Rule
60(b)(3) because “the judgment was obtained through fraud.”
No. 28 at 1.

ECF

He states the indictment failed to allege the

elements of the offense, specifically that Petitioner had prior
convictions punishable by more than a year imprisonment and that
the firearm affected interstate commerce.

Id. at 3.

He argues

the United States obtained the judgment through fraud because it
“mislead the Court and a grand jury to believe that Movant’s
prior state convictions had standard sentencing ranges
punishable by imprisonment terms exceeding one year” and that
the firearm impacted interstate commerce.
omitted).
.”

Id.

Id. (emphasis

He assets he was “tricked into pleading guilty . . .
The United States did not file opposition to the

motions.

3

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II.

STANDARD OF REVIEW
A Rule 60(b) motion is “addressed to the sound discretion

of the trial court guided by accepted legal principles applied
in light of all the relevant circumstances.”
638 F.2d 646, 648 (3d Cir. 1981).

Ross v. Meagan,

Rule 60(b) “does not confer

upon the district courts a ‘standardless residual of
discretionary power to set aside judgments.’”

Moolenaar v. Gov.

of the Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987).
To prevail under Rule 60(b)(3) “the movant must establish
that the adverse party engaged in fraud or other misconduct, and
that this conduct prevented the moving party from fully and
fairly presenting his case.”
204, 207 (3d Cir. 1983).

Stridiron v. Stridiron, 698 F.2d

“The standard is an exacting one, and

it requires a movant to prove fraud by clear and convincing
evidence.”

Shelton v. FCS Capital LLC, No. 2:18-cv-03723, 2020

U.S. Dist. LEXIS 105730, at *7 (E.D. Pa. June 17, 2020).
III. DISCUSSION
The Court must first consider whether this motion is
properly brought under Rule 60(b) or whether it is a second or
successive § 2255 petition.

“AEDPA’s restrictions on the filing

of second or successive habeas petitions make it implausible to
believe that Congress wanted Rule 60(b) to operate under full
throttle in the habeas context.”

Rodwell v. Pepe, 324 F.3d 66,

67 (1st Cir. 2003); accord Pridgen v. Shannon, 380 F.3d 721, 727
4

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(3d Cir. 2004). “[I]n those instances in which the factual
predicate of a petitioner’s Rule 60(b) motion attacks the manner
in which the earlier habeas judgment was procured and not the
underlying conviction, the Rule 60(b) motion may be adjudicated
on the merits.”

Pridgen, 380 F.3d at 727.

“However, when the

Rule 60(b) motion seeks to collaterally attack the petitioner’s
underlying conviction, the motion should be treated as a
successive habeas petition.”

Id.

Petitioner’s arguments attack the validity of his
indictment and plea agreement, not the manner in which the
earlier habeas judgment was procured.

Petitioner attempts to

get around the limitation on Rule 60 motions by asserting “the
reasons articulated by the prosecutor as a basis for moving the
Court to dismiss Movant’s § 2255, were in fact based on a
misrepresentation of the facts and circumstances surrounding
Movant’s conviction and guilty plea . . . .”

ECF No. 28 at 9.

“Movant Nelson asserts that he does in fact present a bona fide
motion for reconsideration because he is actually innocent of
the 922(g)(1) offense to which defence [sic] Counsel had
rendered assistance, and, that the Judgment was obtained through
fraud, misrepresentation, and other misconduct not discoverable
by due diligence before or during the proceedings.”

Id. at 7.

The purported “fraud” was the charge in the Superseding
Indictment that alleged that Petitioner had qualifying prior
5

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convictions under § 922(g) and that the firearm affected
interstate commerce.

In other words, Petitioner argues the

United States committed fraud during the § 2255 proceedings by
arguing the indictment and guilty plea were valid.

Petitioner’s

maneuverings do not change the fact that Petitioner is really
challenging the validity of the plea and indictment, not the §
2255 proceedings.

Any disagreements with the Court’s decision

should have been raised in Petitioner’s appeal to the Third
Circuit.
Supporting the Court’s conclusion that the motion is in
reality an unauthorized second or successive § 2255 motion is
the fact that § 2255(h) specifically states that “newly
discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense” is a basis for filing a
second or successive motion.

28 U.S.C. § 2255(h)(1). 2

2

The Court

Although newly discovered evidence can warrant relief from
judgment under Rule 60(b)(2), the Federal Rules of Civil
Procedure only apply in § 2255 proceedings “to the extent that
they are not inconsistent with any statutory provisions or these
rules . . . .” 28 U.S.C. § 2255 Rule 12. Rule 60(b)(2) does
not apply in Petitioner’s case because it conflicts with the
statutory provisions of § 2255(h). See Balter v. United States,
No. 93-cr-536, 2019 WL 959694, at *3 (D.N.J. Feb. 27, 2019)
(“Congress provided that any newly discovered evidence, . . .
which by definition was not available to petitioner when the
first § 2255 petition was adjudicated, may form the basis of a
6

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declines to transfer this argument to the Third Circuit for
consideration under 28 U.S.C. § 2244(b) as Petitioner has not
provided the Court with the “newly discovered evidence” proving
that the firearm was manufactured and sold in New Jersey, and
therefore did not affect interstate commerce. 3
The sole procedural challenge raised by Petitioner is his
argument that the Court erred in dismissing as moot his attempt
to amend the § 2255 motion.

The Court did not dismiss any

substantive claim as moot.

In his reply papers, Petitioner

cited Mathis v. United States, 136 S. Ct. 2243 (2016), and
argued that “the petitioner’s sentence should not have been
enhanced under U.S.S.G. § 2K2.1, and his prior drug charges
should not have been broken-up into separate convictions which
were premised upon getting and or seeking a substantially longer
sentence than what he could legally have obtained but for the
sentencing factor manipulation.”

ECF No. 13.

He thereafter

filed a “motion to amend and supplement the record” asking the
Court to consider the argument because “his amendment relates
back to his original pleading/petition, because it only expands
on and further clarifies the fact that he was erroneously

second petition provided it passes the screening of § 2255(h)(1)
as determined by the Court of Appeals.”).
3

Nothing in this Opinion prevents Petitioner from asking the
Third Circuit for permission to file a second or successive
motion on his own if he chooses.
7

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enhanced based upon previous conduct that can no longer be used
against him due a substantive change in the law made retroactive
on collateral review.”

ECF No. 14 at 2.

The Court noted that “Petitioner was authorized by the
Court’s Order to Answer to file this reply and as such, no
motion was necessary.”

ECF No. 21 at 1 n.1.

The motion to

amend was terminated for docket management purposes, but the
argument was considered and found to be without merit by the
Court.

Id. at 23-24.

The Third Circuit concluded that “[t]o

the extent that Appellant argues in his request for a
certificate of appealability that the District Court failed to
consider his claim that he is ‘factually innocent’ of violating
18 U.S.C. § 922(g) because he never served a term of
imprisonment exceeding one year, he has failed to make ‘a
substantial showing of the denial of a constitutional right.’”
Nelson v. United States, No. 19-3270 (3d Cir. Jan. 9, 2020)
(quoting 28 U.S.C. § 2253(c)(2)).

Therefore, Petitioner has not

shown relief under Rule 60(b)(3) is warranted.
VI.

CONCLUSION

Petitioner has failed to meet the requirements of Rule
60(b); therefore, the Court will deny the motion.

An

appropriate order will follow.
Dated: October 14, 2020
At Camden, New Jersey

__s/ Noel L. Hillman ______
NOEL L. HILLMAN
United States District Judge
8