Kelly v. USA
ORDER dismissing as a successive petition 17 Motion of independent action to support rule 60 (D) of the federal rules and civil procedure showing cause and prejudice. Court declines to issue Certificate of Appealability. Signed by District Judge Richard Voorhees on 3/28/2013. (Pro se litigant served by US Mail.) (tmg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
LEROY JOSEPH KELLY,
UNITED STATES OF AMERICA,
THIS MATTER is before the Court on pro se Petitioner Leroy Joseph Kelly’s “Motion
of Independent Action to Support Rule 60(D) of the Federal Rules and Civil Procedure Showing
Cause and Prejudice.” (Doc. No. 17). For the reasons that follow, the Court finds that this is an
unauthorized, successive petition, and the Court therefore dismisses Petitioner’s motion.
On April 2, 1998, Petitioner pled guilty pursuant to a written plea agreement to commit
armed robbery of several restaurants, supermarkets, and convenience stores, in violation of the
Hobbs Act, 18 U.S.C. § 1951 (2000), and two counts of using a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c). (Case No. 3:97-cr-333-MOC-1: Doc. No. 17: Entry
and Acceptance of Guilty Plea; Doc. No. 27: Judgment). Petitioner was sentenced to a total of
312 months’ imprisonment. (Id.).
On January 5, 2000, Petitioner filed a § 2255 motion to vacate, contending in part that his
counsel was ineffective for failing to file an appeal on Petitioner’s behalf. (Doc. No. 1). This
Court denied the motion in part and granted the motion in part on April 30, 2002. (Doc. Nos. 11;
13). The Court granted the motion in part so that the Court could enter an amended judgment to
give Petitioner the opportunity to file a timely appeal. See (Doc. No. 13). The Court entered an
amended judgment with the same conditions as the original judgment on August 20, 2002. (Doc.
No. 15). Petitioner appealed his conviction, and on July 27, 2004, the Fourth Circuit affirmed
Petitioner’s conviction. United States v. Kelly, 102 Fed. App’x 838 (4th Cir. 2004). On
November 29, 2004, the U.S. Supreme Court denied Petitioner’s petition for writ of certiorari.
United States v. Kelly, 543 U.S. 1013 (2004).
On March 22, 2013, Petitioner filed the instant “Motion of Independent Action to
Support Rule 60(D) of the Federal Rules and Civil Procedure Showing Cause and Prejudice.”
In the “Motion of Independent Action to Support Rule 60(D) of the Federal Rules and
Civil Procedure Showing Cause and Prejudice,” Petitioner asks the Court “to grant relief of this
Independent Action from his sentence, in support of Rule 60(d), and to by-pass any procedural
default on the basis of ‘cause and prejudice.’”1 (Doc. No. 17 at 1). Petitioner goes on to argue
that the Court should “grant his motion to either set-aside, correct, or vacate his conviction”
based on his contention that he received ineffective assistance at trial during the plea bargaining
process. (Id. at 6; 10). As noted, Petitioner has already filed one § 2555 motion to vacate his
conviction and sentence in Case No. 3:97-cr-333-MOC-1, and this Court has adjudicated the
motion. Regardless of the name that Petitioner has assigned to his instant motion, it is in
Rule 60(d) of the Federal Rules of Civil Procedure states, in relevant part, that Rule 60 “does
not limit a court's power to . . . entertain an independent action to relieve a party from a
judgment, order, or proceeding.” FED. R. CIV. P. 60(d).
substance a successive petition because in the motion Petitioner is again attempting to attack his
conviction and sentence in Case No. 3:97-cr-333-MOC-1.
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. § 2255.
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. See also 28 U.S.C. § 2255(h) (stating
that “[a] second or successive motion must be certified as provided in section 2244 by a panel of
the appropriate court of appeals”). Accordingly, this successive petition must be dismissed. 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”).
For the foregoing reasons, the Court will dismiss Petitioner’s “Motion of Independent
Action to Support Rule 60(D) of the Federal Rules and Civil Procedure Showing Cause and
Prejudice” because the motion is a successive petition and Petitioner has not first obtained
permission from the Fourth Circuit Court of Appeals to file the motion.
IT IS, THEREFORE, ORDERED that
Petitioner’s “Motion of Independent Action to Support Rule 60(D) of the Federal
Rules and Civil Procedure Showing Cause and Prejudice,” (Doc. No. 17), is
DISMISSED as a successive petition.
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: March 28, 2013
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