Lindsey v. USA

Filing 5

ORDER denying 4 MOTION to Vacate 3 Order. Signed by Senior Judge Graham Mullen on 3/18/2024. (Pro se litigant served by US Mail.)(kab)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:99-cv-00133-GCM
(CRIMINAL CASE NO. 3:94-cr-00139-1-MU)

REGINALD W. LINDSEY,

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

ORDER

THIS MATTER is before the Court on Petitioner’s motion to vacate the Court’s Order
denying Petitioner’s motion to vacate pursuant 28 U.S.C. § 2255 [CV Doc. 4],1 which the Court
will construe as a motion to reconsider under Federal Rule of Civil Procedure 60(b).
I.

BACKGROUND
On February 17, 1995, Petitioner Reginald Lindsey pleaded guilty to one count of aiding

and abetting the use of fire and explosive materials to commit a felony in violation of 18 U.S.C.
§§ 844(i) and 2. [CR Doc. 1, 35; 2/17/1995 CR Docket Entry; see CR Doc. 44]. Petitioner was
sentenced to a term of imprisonment of 60 months. [CR Doc. 35]. The Judgement did not
mention whether the federal sentence was to run concurrently with or consecutively to any future
related state court sentence. [Id. at 2]. Judgment on Petitioner’s conviction was entered on
September 18, 1995. [Id.]. Petitioner did not file a direct appeal.

1

Citations to the record herein contain the relevant document number referenced preceded by either the
letters “CV,” denoting that the document is listed on the docket in the civil case file number 3:99-cv-00133GCM, or the letters “CR,” denoting that the document is listed on the docket in the criminal case file number
3:94-cr-00139-1-MU.

On August 17, 1998, and April 7, 1999, respectively, Petitioner filed motions to correct
his sentence to reflect that his federal and state sentences would run concurrently. [CR Docs. 40,
41]. On April 7, 1999, before the Court ruled on his motions to correct his sentence, Petitioner
filed a pro se motion to vacate pursuant to 28 U.S.C. § 2255. [CR Doc. 42]. In that motion, he
argued that he received ineffective assistance of counsel because he “was advised by [his]
attorney that any sentence [he] received in Federal Court would in all likelihood run concurrent
with [his] State sentence.” [CV Doc. 1 at 7]. On April 19, 1999, the Court granted Petitioner’s
motions to correct his sentence, noting that the Government agreed in Petitioner’s plea
agreement to recommend that his federal sentence be entered concurrently,” and, “[t]hus, it
appears that the failure to impose a concurrent sentence was simply an inadvertent omission.”
[CR Doc. 43]. On April 23, 1999, the Court denied Petitioner’s motion to vacate under § 2255,
finding it time barred under the AEDPA and noting it was moot in any event because the Court
had reentered Petitioner’s Judgment “to allow his federal and state sentences to run
concurrently.” [CV Doc. 2].
Now pending is Petitioner’s motion under Rule 60(b) to reconsider the Court’s denial his
§ 2255 motion to vacate.2 [CV Doc. 4]. As grounds, Plaintiff argues that the denial of his §
2255 motion was “procured by fraud on the court.” [Id. at 1]. Petitioner claims that his attorney
filed the purportedly pro se motion “without Petitioner’s permission” and forged Petitioner’s
signature. [Id.]. Petitioner argues that by filing the motion advancing only a single claim
without Petitioner’s permission, his attorney “prevented Petitioner from challenging his

In his motion, Petitioner asks the Court to vacate “the judgment entered by this Court on April 19,
1999.” [CV Doc. 4 at 1]. The only Order entered on April 19, 1999, however, was the Court’s Order
granting Petitioner’s motions to reduce his sentence. [See CR Doc. 43]. Because Petitioner’s motion to
reconsider is in substance aimed at and seeks reconsideration of the Order on his § 2255 motion to vacate,
the Court assumes April “19” is a typographical error.
2

2

conviction on other grounds[.]” [Id. at 2]. Petitioner, however, does not state what challenges he
was foreclosed form advancing. [See CV Doc. 4]. Petitioner submits several “sample
signatures” with his motion to demonstrate the alleged forgery. [See CV Doc. 4-1]. For relief,
Petitioner wants his attorney “to be held to account for forging [Petitioner’s signature]” and for
the Court to vacate the Order denying his § 2255 motion and order an evidentiary hearing “to
determine the facts behind who executed Petitioner’s signature.” [CV Doc. 4 at 2, 4].
II.

DISCUSSION
Under Rule 60(b) of the Federal Rules of Civil Procedure, a court may relieve a party

from a final judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud…, misrepresentation, or misconduct by an opposing
party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged…; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). The Rule “codifies inherent judicial powers that were previously exercised
through a gaggle of common-law writs, which the rule abolishes.” United States v. Winestock,
340 F.3d 200, 204 (4th Cir. 2003). “[A] Rule 60(b) motion seeking relief from a final judgment
is not a substitute for a timely and proper appeal.” Dowell v. State Farm Fire and Cas. Auto. Ins.
Co., 993 F.2d 46, 48 (4th Cir. 1993) (citation omitted). “Therefore, before a party may seek
relief under Rule 60(b), a party first must show ‘timeliness, a meritorious [claim], [and] a lack of
unfair prejudice to the opposing party.” Id. (citing Werner v. Carbo, 731 F.2d 204, 207 (4th Cir.
1984)). “After a party has crossed this initial threshold, he then must satisfy one of the six
specific sections of Rule 60(b).” Id. (citing id.). As to timeliness, a Rule 60(b) motion “must be

3

made within a reasonable time,” and for reasons (1), (2), and (3) no more than a year after entry
of judgment. Fed. R. Civ. P. 60(c)(1). When seeking relief under Rule 60(b)(6), the movant
must also “show extraordinary circumstances justifying the reopening of a final judgment.”
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (internal quotation marks and alteration
omitted.”).
While Rule 60(b) is a rule of civil procedure, it applies to proceedings filed under 28
U.S.C. § 2255 “to the extent that [it is] not inconsistent with” applicable statutory provisions and
rules. Rule 12, Rules Governing Section 2255 Proceedings for the United States District Courts;
Gonzales, 545 U.S. at 534 (“Rule 60(b) has an unquestionably valid role to play in habeas
cases.”). Rule 4(b) of the Rules Governing Section 2255 Proceedings, on the other hand,
provides that courts are to promptly examine motions to vacate, along with “any attached
exhibits and the record of prior proceedings” to determine whether the petitioner is entitled to
any relief on the claims set forth therein. A Court may resolve a motion to vacate if, after
examining the record, it determines it can be resolved based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
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 prior application or the bar against litigation of claims not presented in a prior
application. 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
Section 2255 motion). Regarding Rule 60(b) motions that are actually attempts at successive
collateral review, the Fourth Circuit has stated:

4

a motion directly attacking the prisoner’s conviction or sentence
will usually 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.
Here, Petitioner contends that the Court’s Order denying his § 2255 motion to vacate was
obtained by fraud because his attorney forged his signature on and filed the purportedly pro se
motion without Petitioner’s permission. The Court finds that Petitioner’s pending motion is
properly consider under Rule 60 because he attacks a defect in the collateral review process
rather than his conviction or sentence.
As noted, Rule 60(c)(1) requires that a Rule 60(b) motion must be made “within a
reasonable time” after entry of judgment and sets one year as the outer limit of reasonableness
when relief is sought based on excusable neglect, mistake, newly discovered evidence, or fraud.
Fed. R. Civ. P. 60(c)(1); see Williams v. Tero Tek Intern., Inc., No. JKB-10-2752, 2013 WL
1156055, at *1 (D. Md. Mar. 20, 2013) (noting that the one-year time limit set in Rule 60(c) “is
merely the outer limit within which such motion may be presented”); Holland v. Virginia Lee
Co., Inc., 188 F.R.D. 241, 248 (W.D. Va. July 23, 1999) (Rule 60(b) motions “must be made
‘within a reasonable time,’ with the further requirement that motions brought under subsections
(1) through (3) of the rule be made not more than one year after judgment is entered”).
Petitioner has the burden to show timeliness. Werner, 731 F.2d at 206-07.
The Fourth Circuit has “held on several occasions that a Rule 60(b) motion is not timely
brought when it is made three to four months after the original judgment and no valid reason is
given for the delay.” McLawhorn v. John W. Daniel & Co., Inc., 924 F.2d 535, 538 (4th Cir.
1991) (citing Central Operating Co. v. Utility Workers of America, 491 F.2d 245 (4th Cir. 1974),
and Consolidated Masonry & Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d 249 (4th
5

Cir. 1967)). See also, Wittenberg v. First Independent Mortg. Co., 599 Fed. App’x 463, 471 (4th
Cir. 2013) (affirming denial of Rule 60(b) motion as untimely where it was filed nine months
after disputed order and movant “[presented] no compelling explanation” for the delay). This
Court has previously held that, because the purpose of Rule 60(b) is “to permit the district court
to correct an erroneous judgment and thereby avoid the necessity of an appeal,” “a reasonable
time for filing a Rule 60(b) motion should not exceed that allowed for an appeal.” Ferguson v.
United States, 186 F.R.D. 340, 341 (W.D.N.C. Mar. 16, 1999) (finding Rule 60(b) motion
untimely where not filed within 60-day appeal window) (internal citation omitted); see Bradley
v. United States, 51 F.Supp.2d 696, 697 (W.D.N.C. Mar. 24, 1999) (finding Rule 60(b) motion
filed within time to file a notice of appeal timely). Petitioner’s motion to reconsider, which he
filed nearly 25 years after the denial of his motion to vacate, is clearly untimely and Petitioner
alleges no excuse or explanation for such delay. Petitioner, therefore, fails the first hurdle to
relief under Rule 60(b).
Petitioner also fails to show that he has a meritorious claim or defense such that granting
the relief he seeks would affect a different outcome. See Boyd v. Bulala, 905 F.2d 764, 769 (4th
Cir. 1990) (“Under all the provisions of Rule 60(b), a threshold condition for granting the relief
is that the movant demonstrate that granting that relief will not in the end have been a futile
gesture, by showing that she has a meritorious defense or claim.”). That is, the motion to vacate
Petitioner’s attorney allegedly “fraudulently” submitted on Petitioner’s behalf was time barred
under the AEDPA. Any claims Petitioner could or would have submitted in its place would have
also been so barred and Petitioner fails to allege what claims he was prevented from advancing in

6

any event.3 Accordingly, Petitioner has also failed to overcome the second hurdle to relief under
Rule 60(b).4 Because Petitioner has failed to overcome the threshold requirements to relief
under Rule 60(b), the Court will deny his motion.
III.

CONCLUSION
For these reasons, the Court will deny Petitioner’s motion to reconsider the Court’s Order

denying his motion to vacate under 28 U.S.C. § 2255.
ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s Motion [Doc. 4] is DENIED.

Signed: March 18, 2024

3

The Court also notes that Petitioner has long since served his sentence and been released from custody
on the underlying charge. Petitioner does not allege how vacating the Order denying his motion to vacate
would have any impact on his status.
4

The Court declines to address the requirement that Petitioner show that the Government would not suffer
unfair prejudice if the judgment were set aside, as these first threshold elements are so plainly lacking.
7