Ross v. USA

Filing 19

ORDER dismissing Petitioners 18 Rule 60(b)(4) motion as an unauthorized, successive Section 2255 motion. Court declines to issue a certificate of appealability. Signed by District Judge Martin Reidinger on 5/11/15. (Pro se litigant served by US Mail.)(khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Civil Case No. 1:09-cv-00365-MR
[Criminal Case No. 1:07-cr-00117-MR-1]

ROBERT KEITH ROSS,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
________________________________ )

ORDER

THIS MATTER is before the Court on a review of Petitioner’s “Motion
to Vacate Judgment Pursuant to Federal Rules Civil Procedure Rule
60(b)(4)” [Doc. 18]. For the reasons that follow, Petitioner’s motion will be
treated as a successive § 2255 motion and will be dismissed.
I.

BACKGROUND
The Petitioner was convicted following his plea of guilty to one count

of

the

manufacture

and

possession

with

intent

to

distribute

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. The Petitioner was sentenced to
110 months’ imprisonment, and he did not file a direct appeal from this

criminal judgment.

[Criminal Case No. 1:07-cr-00117-MR, Doc. 17:

Judgment].
On September 23, 2009, Petitioner filed a Motion to Vacate, Set Aside
or Correct Sentence pursuant to 28 U.S.C. § 2255. [Doc. 1]. On September
9, 2010, the Court entered an Order denying and dismissing the Petitioner’s
Section 2255 motion after finding that it was without merit. [Doc. 2]. The
Petitioner appealed, but the United States Court of Appeals for the Fourth
Circuit dismissed, finding that the Petitioner had failed to show that he was
entitled to a certificate of appealability on the issues he raised in his Section
2255 motion. [Doc. 8].
On August 3, 2012, the Petitioner filed a motion pursuant to Rule
60(b)(4) of the Federal Rules of Civil Procedure, arguing that his criminal
judgment is void because he was sentenced based on an erroneous finding
regarding drug amounts. [Doc. 11]. The Court dismissed this motion as a
successive § 2255 motion on January 18, 2013. [Doc. 12].
On September 19, 2013, the Petitioner filed a second Rule 60(b)(4)
motion, arguing that his judgment is void because he was subjected to a
three-level enhancement under a Guidelines provision that was not in effect
at the time of his arrest. [Doc. 18].

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II.

DISCUSSION
The relief sought by Petitioner in the present Rule 60(b)(4) motion is

identical to the relief he could obtain through a successful § 2255 proceeding.
Accordingly, the Court will 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 petition 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. Specifically,
the AEDPA provides, in pertinent part, as follows:
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—
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(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).
The Petitioner has not provided any evidence that he has secured
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 the 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. 473, 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).
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IT IS, THEREFORE, ORDERED that Petitioner’s Rule 60(b)(4) motion
[Doc. 18] is DISMISSED as an unauthorized, successive Section 2255
motion.
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
appealability.
IT IS SO ORDERED.

Signed: May 11, 2015

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