Kane v. USA
Filing
16
ORDER denying Petitioner's 11 Motion for Reconsideration. Signed by District Judge Martin Reidinger on 3/1/2017. (kby)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00146-MR
(CRIMINAL CASE NO. 2:08-cr-00024-MR-DLH-1)
JAMES KANE,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
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___________________________ )
ORDER
THIS MATTER comes before the Court on a motion by Petitioner
James F. Kane for reconsideration of this Court’s denial of a certificate of
appealability after this Court dismissed Petitioner’s 28 U.S.C. § 2255 motion
to vacate as an unauthorized, successive petition. [Doc. 11].
BACKGROUND
On December 21, 2016, this Court dismissed Petitioner’s § 2255
motion as an unauthorized successive application due to his failure to meet
the standards for filing a successive application. [Doc. 9; see 28 U.S.C. §§
2244(b)(2), 2255(h)].
This Court also declined to issue a certificate of
appealability. [Id. at 14]. In particular, this Court found that Petitioner could
not bring a claim under Johnson v. United States, 135 S. Ct. 2551 (2015),
because he was not sentenced under the residual clause of the Armed
Career Criminal Act. [Id. at 10]. As noted in the Court’s prior order, Petitioner
received authorization from the Fourth Circuit Court of Appeals to file a
successive petition based on the Fourth Circuit’s finding that Petitioner made
a prima facie showing that he “may” be entitled to relief under Johnson. [Id.
at 3]. However, because this Court subsequently determined that Petitioner
is not entitled to relief under Johnson, this Court dismissed Petitioner’s
motion to vacate as an unauthorized successive petition. [Id. at 10, 13].
Additionally, this Court held that Petitioner could not bring a claim pursuant
to Descamps v. United States, 133 S. Ct. 2276 (2013), because that claim
also did not meet the successive standards in 28 U.S.C. §§ 2244(b)(2) and
2255(h)(2). [Id. at 11]. Petitioner has now filed a motion for reconsideration,
in which he argues that reasonable jurists would find Petitioner’s claim for
relief under Johnson at least debatable. [Doc. 11 at 2].
STANDARD OF REVIEW
Petitioner purports to bring his motion under Rule 11(a) of the Rules
Governing § 2255 proceedings in the District Courts.
[Doc. 11 at 1].
However, that provision speaks to requirements for certificates of
appealability and merely states that a motion for reconsideration does not
extend the time for filing an appeal. See Rule 11(a) of the Rules Governing
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§ 2255 Proceedings. Under the Federal Rules of Civil Procedure, which
apply to § 2255 proceedings, a motion under Federal Rule of Civil Procedure
59(e) or 60(b) may serve as a motion for reconsideration. See Rule 12 of
the Rules Governing § 2255 proceedings in the District Courts; Fed. R. Civ.
P. 59(e), 60(b). Thus, the Court will assume that Petitioner’s motion is
brought under Rule 59 or 60.
DISCUSSION
Here, Petitioner challenges this Court’s denial of a certificate of
appealability, arguing that reasonable jurists would find this Court’s
resolution of his constitutional claim debatable and relying on two district
court cases in which defendants obtained relief under Johnson in original §
2255 proceedings.
[Doc. 11 at 2, 4].
Regardless of which provision
Petitioner is bringing his motion under, it fails because a § 2255 petitioner
may not relitigate the merits of his claims in a motion for reconsideration. In
his motion for reconsideration, Petitioner is merely presenting issues that
were already ruled on by this Court, either expressly or by implication, when
the Court dismissed the petition as successive and denied Petitioner a
certificate of appealability. In determining that the petition is successive, the
Court has already ruled that Petitioner has no valid Johnson claim. Thus,
the Court’s procedural finding on successiveness was inherently related to
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the substantive issue of whether Petitioner had a constitutional claim under
Johnson. In denying a certificate of appealability, the Court determined that
Petitioner had not shown that reasonable jurists would find the Court’s
assessment of the constitutional claims debatable or wrong. The Court
declines to reverse its determination on this issue.
CONCLUSION
Based on the foregoing, Petitioner’s motion for reconsideration of the
Court’s prior denial of a certificate of appealability is denied.
ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s Motion for
Reconsideration [Doc. 11] is DENIED.
The Clerk is instructed to notify the Fourth Circuit Court of Appeals of
the entry of this Order.
IT IS SO ORDERED.
Signed: March 1, 2017
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