Jones v. Parsons

Filing 19

ORDER DENYING AND DISMISSING as unauthorized, successive § 2254 petitions 16 Motion for Relief from Order of Judgment and 17 Amendment to the Motion for Relief from Order of Judgment. Court declines to issue a certificate of appealability. Signed by Chief Judge Robert J. Conrad, Jr on 05/17/13. (Pro se litigant served by US Mail.)(emw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:12-cv-175-RJC
RODNEY EUGENE JONES,

)
)
)
Petitioner,
)
)
vs.
)
)
LAWRENCE PARSONS, Administrator,
)
Lanesboro Corrrectional Institution,
)
)
Respondent.
)
__________________________________________)

ORDER

THIS MATTER comes before the Court on Petitioner’s Motion for Relief from Order of
Judgment, (Doc. No. 16), and on Petitioner’s Amendment to Motion for Relief from Order of
Judgment, (Doc. No. 17). For the reasons that follow, the Court finds that the pending motion
for relief from order of judgment and the accompanying amendment are unauthorized,
successive petitions.
I.

BACKGROUND

Petitioner filed the pending motion for relief and the amendment to the motion on April
22, 2013 and April 25, 2013, respectively, seeking to have this Court review the Court’s Order
dismissing Petitioner’s 28 U.S.C. § 2254 habeas petition as time-barred. In Petitioner’s motion
and the accompanying amendment, Petitioner contends, among other things, that his sentence
was imposed in violation of his equal protection rights because other, similarly situated prisoners
were given shorter sentences.1

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Petitioner also argues in conclusory fashion that the Court should not have found that the
petition was time-barred. This contention by Petitioner does not constitute a successive petition
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II.

DISCUSSION

Under Rule 60(b) of the Federal Rules of Civil Procedure, where a petitioner seeks relief
from a judgment under Rule 60(b) on grounds other than clerical mistake, courts must treat such
a motion as seeking successive post-conviction relief when failing to do so would allow the
applicant to evade the bar against relitigation of claims presented in a prior application or the bar
against litigation of claims not presented in a prior application.2 United States v. Winestock, 340
F.3d 200, 206 (4th Cir. 2003) (requiring district courts to review Rule 60(b) motions to
determine whether such motions are tantamount to a § 2255 motion). With regard to Rule 60(b)
motions that are actually attempts at successive collateral review, the Fourth Circuit has stated
that:
a motion directly attacking the prisoner’s conviction or sentence will usually
because it is addressing this Court’s adjudication that the § 2254 petition is time-barred. That
part of the motion for relief from judgment, however, that contends that the state sentencing
court violated Petitioner’s equal protection rights by giving him a longer sentence than similarly
situated prisoners clearly constitutes a successive petition.
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Federal Rule of Civil Procedure 60(b) provides for post-judgment relief where the moving
party demonstrates:
(1)
(2)
(3)
(4)
(5)

(6)

mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
the judgment is void;
the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
any other reason that justifies relief.

FED. R. CIV. P. 60(b).

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amount to a successive application, while a motion seeking a remedy for some
defect in the collateral review process will generally be deemed a proper motion
to reconsider.
Id. at 207. See also Gonzalez v. Crosby, 545 U.S. 524, 531-33 (2005) (concluding that a Rule
60(b) motion for relief from judgment that directly challenges the underlying conviction
constitutes a successive § 2254 petition).
Because Petitioner’s instant motion for relief from judgment, and the accompanying
amendment, attack his criminal conviction and the validity and length of his sentence, the motion
and amendment must be construed as successive § 2254 petitions. Pursuant to 28 U.S.C. §
2244(b)(3)(A), “[b]efore a second or successive application permitted by this section is filed in
the district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.” Thus, Petitioner must first obtain an
order from the United States Court of Appeals for the Fourth Circuit before this court will
consider any second or successive petition under 28 U.S.C. § 2254. Petitioner has not shown
that he has obtained the permission of the United States Court of Appeals for the Fourth Circuit
to file a successive petition. Accordingly, the pending motion for relief from judgment and the
amendment to the motion for relief from judgment must be dismissed as second or successive
petitions. See Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding that failure of petitioner to
obtain authorization to file a “second or successive” petition deprived the district court of
jurisdiction to consider the second or successive petition “in the first place”).
III.

CONCLUSION

For the reasons stated herein, Petitioner’s Motion for Relief from Order of Judgment and
the Amendment to the Motion for Relief are both denied and dismissed as unauthorized,
successive § 2254 petitions.
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IT IS, THEREFORE, ORDERED that
1.

Petitioner’s Motion for Relief from Order of Judgment, (Doc. No. 16), and the
Amendment to the Motion for Relief from Order of Judgment, (Doc. No. 17), are
both DENIED and DISMISSED as unauthorized, successive § 2254 petitions.

2.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 and Section 2255 Cases, this Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell,
537 U.S. 322, 338 (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) (when relief is denied on procedural grounds, a petitioner must
establish both that the dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a constitutional right).

Signed: May 17, 2013

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