Ross v. USA
ORDER dismissing as successive 11 Motion to Vacate. Signed by District Judge Martin Reidinger on 01/16/2013. (Attachments: # 1 Clerk's Judgment) (Pro se litigant served by US Mail.)(thh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Civil Case No. 1:09cv365-MR
[Criminal Case No. 1:07cr117-MR-1]
ROBERT KEITH ROSS,
UNITED STATES OF AMERICA,
THIS MATTER is before the Court on a review of Petitioner’s Rule
60(b)(4) motion. [Doc. 11]. For the reasons that follow, Petitioner’s motion
will be examined as a Section 2255 motion and will be dismissed.
Petitioner was convicted following his plea of guilty to one count of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1). At sentencing, the
Court found that Petitioner was responsible for more than 50 but less than
200 grams of methamphetamine mixture. Petitioner was sentenced to 110months imprisonment and he did not file a direct appeal from this criminal
On September 23, 2009, Petitioner filed a Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. [1:09cv365, Doc.
1]. On September 9, 2010, the Court entered an Order denying and
dismissing Petitioner’s Section 2255 motion after finding that it was without
merit. Petitioner filed an appeal to the United States Court of Appeals for
the Fourth Circuit that was dismissed after the Court found that Petitioner
had failed to show that he was entitled to a certificate of appealability on
the issues he raised in his Section 2255 motion. United States v. Ross, No.
10-7463 (4th Cir. filed May 12, 2011). [Doc. 8]. Through this present
motion, Petitioner contends that he is entitled to relief because his criminal
judgment is void. [Doc. 11].
II. STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings, sentencing courts are directed to promptly examine motions
to vacate, along with “any attached exhibits and the record of prior
proceedings” in order to determine whether a petitioner is entitled to any
relief. The Court has considered the record in this matter and applicable
authority and concludes that this matter can be resolved without an
evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th
Petitioner contends that he was sentenced to a 110-months’ active
imprisonment based on the Court’s finding that he was responsible for the
methamphetamine mixture. [Doc. 11 at 2]. This underlying premise of
Petitioner’s contentions is simply in error. The sentencing Court found that
the amount of methamphetamine mixture attributable to Petitioner was
“greater than 50 but less that 200 grams.” See [Doc. 2: Memorandum of
Decision and Order at 5].
The Court next observes that the relief Petitioner is seeking in his
Rule 60(b)(4) motion to vacate his criminal judgment is identical to the relief
he could obtain through a successful Section 2255 proceeding, and the
Court will therefore treat his Rule 60(b) motion as a motion brought
pursuant to Section 2255. See Gonzalez v. Crosby, 545 U.S. 524, 531, 125
S. Ct. 2641, 162 L. Ed. 2d 480 (2005) (“Virtually every Court of Appeals to
consider the question has held that such a pleading, although labeled a
Rule 60(b) motion, is in substance a successive habeas petitioner and
should be treated accordingly.”); United States v. Winestock, 340 F.3d 200,
206-07 (4th Cir. 2003) (“a motion directly attacking the prisoner’s conviction
or sentence will usually amount to a successive application.”).
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), as
codified in 28 U.S.C. § 2255, provides that a “prisoner in custody under
sentence of a court established by Act of Congress . . . may move the court
which imposed the sentence to vacate, set aside or correct the sentence.”
§ 2255(a). The AEDPA, however, provides a specific limitation on a
prisoner’s ability to bring a second, or successive motion under § 2255.
The AEDPA provides, in relevant part, that
“[a] second or successive motion [under Section
2255] must be certified as provided in Section 2244
by a panel of the appropriate court of appeals to
contain— (1) 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;
or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
authorization from the Fourth Circuit to file a successive § 2255 motion,
therefore this Court is without jurisdiction to consider the merits of the
present Section 2255 motion and it will be dismissed.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases,
the Court declines to issue a certificate of appealability as Petitioner has
not made a substantial showing of a denial of a constitutional right. 28
U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in
order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding
that when relief is denied on procedural grounds, a petitioner must
establish both that the correctness of the dispositive procedural ruling is
debatable, and that the petition states a debatably valid claim of the denial
of a constitutional right).
IT IS, THEREFORE, ORDERED that Petitioner’s Rule 60(b)(4)
motion is DISMISSED as an unauthorized, successive Section 2255
motion. [Doc. 11].
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2255 Cases, the Court declines to issue a certificate of
Signed: January 16, 2013
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