Stewart v. USA

Filing 12

ORDER denying 11 Motion to Set Aside Judgment. Signed by District Judge Max O. Cogburn, Jr on 8/17/12. (Pro se litigant served by US Mail.)(bsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:08cv436
[3:01cr11]
TERRY STEWART,

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Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.
_______________________________

ORDER

THIS MATTER is before the court on petitioner’s “Pro Se Motion for Relief From
Judgment or Order Pursuant to Rule 60(b)(2) & (4)-(6) Federal Rules of Civil Procedure”
(#11). A review of the docket in this matter reveals that petitioner filed a previous Motion
to Vacate, Set Aside, or Correct Sentence on September 30, 2004, which was denied and
dismissed by the court.1

Petitioner appealed the dismissal; however, the appeal was

dismissed as petitioner failed to first seek a certificate of appealability as required by 28
U.S.C. § 2253(c)(1). United States v. Stewart, No. 09-6151, at p. 2 (4th Cir. May 5, 2009)
(unpublished, available herein as docket entry #9).
Federal Rule of Civil Procedure 60(b) provides for post-judgment relief where the
moving party demonstrates:
(1)
(2)
(3)
(4)

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;

1

In its Memorandum and Order, the court noted that “[t]he case has had a tortured
procedural history due to the prolific, harassing and frivolous pro se filings of the
Petitioner.” Mem., p. 1.
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(5)
(6)

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). Where a petitioner seeks relief from a criminal 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. United States v. Winestock, 340 F.3d
200, 206 (4th Cir. 2003).

The appellate court went on to provide “a relatively

straightforward guide” for determining when a Rule 60(b) motion is actually an attempted
successive collateral review application:
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.
Applying the guidance of Winestock to this motion, the court finds that petitioner
primarily contests this court’s previous dismissal of arguments raised in petitioner’s first §
2255 motion. See Mem., pp. 10, 13, 14. Petitioner also claims that he is entitled to relief
under Rule 60(b)(5) and (6) and says that there has been “a change in decisional law and
extra-ordinary circumstances [which] merit relief under 60(b).” Mem., p. 6. Petitioner
points to a Supreme Court case, Porter v. McCollum, 130 S.Ct. 447 (2009), in which the
court ruled that the petitioner, who was convicted of two murders and sentenced to death, had
deficient penalty-phase counsel, who failed to uncover and present any mitigating evidence
during sentencing. Id., p. 453. The court fails to find any meaningful similarity between
petitioner and the petitioner in Porter. Here, petitioner was represented by counsel at re-2-

sentencing, and his counsel noted that petitioner is a “decorated veteran” and “had a good
prior history as far as criminal record goes.” Sentencing Transcript, p. 6. Indeed, petitioner’s
sentence was subject to numerous enhancements, based on the nature of the non-violent
crimes upon which he was convicted, and did not warrant any departures, notwithstanding
petitioner’s military service, age, and lack of a significant prior criminal history.
Indeed, because Petitioner's motion simply attacks the validity and length of his
criminal sentence, it must be read as a § 2255 motion, notwithstanding its caption. United
States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (requiring district courts to review
Rule 60(b) motions to determine whether such motions are tantamount to a § 2255 motion.).
However, Petitioner already has exhausted a § 2255 motion. See United States v. Hendricks,
30 F. App'x 135 (4th Cir.2002) (affirming the district court's denial of Petitioner's § 2255
motion). Therefore, this motion is a “second or successive” motion under § 2255, Winestock,
340 F.3d at 206, and Petitioner must obtain a certification from the Fourth Circuit before he
may bring it in the district court, 28 U.S.C. § 2244(b)(3)(A). Because he has failed to obtain
certification to bring this “second or successive” § 2255 motion, it must be dismissed.
Winestock, 340 F.3d at 207.
ORDER
IT IS, THEREFORE, ORDERED that petitioner’s “ Pro Se Motion for Relief From
Judgment or Order Pursuant to Rule 60(b)(2) & (4)-(6) (#11) is DENIED as non-justiciable
under United States v. Winestock, supra; and (2) such motion, deemed to be a Motion to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, is DENIED without
prejudice as petitioner has not first sought and received permission from the Court of
Appeals for the Fourth Circuit to file a second or successive petition.

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Declination of a Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, this 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 (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, 484–85 (2000) (in order to satisfy § 2253(c) when
court denies relief on procedural grounds, a petitioner must demonstrate both that the
dispositive procedural ruling is debatable, and that the petition states a debatable claim of the
denial of a constitutional right).

Signed: August 17, 2012

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