Buckner v. USA
ORDER denying 7 Motion for Reconsideration. The Court declines to issue a certificate of appealability. Signed by District Judge Martin Reidinger on 12/02/13. (Pro se litigant served by US Mail.)(emw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:13-cv-00021-MR
CRIMINAL CASE NO. 1:05-cr-00032-MR-1
UNITED STATES OF AMERICA, )
THIS MATTER comes before the Court upon Defendant’s “Motion
Top [sic] Alter, Amend or Reconsider a Previous Final Judgment [Doc. 7].
On June 17, 2005, Petitioner pled guilty to bank robbery and aiding
and abetting the same, in violation of 18 U.S.C. §§ 2113(a) and 2, and
possession of a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c). Petitioner was sentenced on April 26, 2006
to a total of 290 months in prison. [Criminal Case No. 1:05-cr-00032-MR-1,
Doc. 25: Judgment]. Petitioner filed a timely notice of appeal. [Id., Doc. 26:
Notice of Appeal]. On November 21, 2006, the Fourth Circuit granted the
Government’s motion to dismiss the appeal. [Id., Doc. 38: United States v.
Buckner, No. 06-4525 (4th Cir. 2006)].
The Supreme Court denied
Petitioner’s petition for certiorari on March 19, 2007. Buckner v. United
States, 549 U.S. 1298 (2007) (No. 06-9439).
Nearly six years later, on January 23, 2013, Petitioner filed a motion
to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, arguing
that he is entitled to relief in light of Carachuri-Rosendo v. Holder, 130 S.
Ct. 2577, 2581 (2010), and the Fourth Circuit’s en banc decision in United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011). On June 17, 2013, the
Court denied Petitioner’s motion to vacate as untimely. [Doc. 5].
On July 16, 2013, Petitioner filed the present motion, seeking
reconsideration of the Court’s Order dismissing his motion to vacate under
Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure on the
grounds that the Supreme Court’s ruling in Descamps v. United States, 133
S.Ct. 2276 (June 20, 2013) constitutes an “intervening change in law”
warranting reconsideration of the Court’s prior Order.
The Fourth Circuit has held that a defendant may not challenge his
criminal conviction under the Federal Rules of Civil Procedure, particularly
Rule 60(b). See United States v. Grapes, 408 F. App'x 766, 767 (4th Cir.
2011) (per curiam) (“The Federal Rules of Civil Procedure do not provide a
vehicle by which [a defendant] may challenge his criminal judgment.”).
Moreover, the type of relief that the Defendant seeks in his present
motion under Rules 59(e) and 60(b) is identical to the relief that could be
obtained through a successful Section 2255 proceeding. Accordingly, the
Court will treat his present motion as a motion brought pursuant to Section
2255. See Gonzalez v. Crosby, 545 U.S. 524, 531 (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, 207 (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”)
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.” 28 U.S.C. § 2255(a).
AEDPA, however, provides a specific limitation on a prisoner's ability to
bring a second or successive motion under § 2255:
A second or successive motion 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 second § 2255 motion;
therefore, this Court is without jurisdiction to consider the merits of the
present 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, 123 S.Ct.
1029, 154 L.Ed.2d 931 (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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (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 Defendant’s “Motion Top [sic]
Alter, Amend or Reconsider a Previous Final Judgment [Doc. 7] is DENIED
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
IT IS SO ORDERED.
Signed: December 2, 2013
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