Nash v. USA

Filing 22

ORDER denying 21 Motion for Reconsideration as an unauthorized, successive § 2255 petition. Court declines to issue a certificate of appealability. Signed by Chief Judge Frank D. Whitney on 7/22/2014. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-283-FDW
(3:09-cr-39-FDW)
JAWAAD NASH,

Petitioner,

v.
UNITED STATES OF AMERICA,
Respondent.
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ORDER

THIS MATTER comes before the Court on Petitioner’s pro se Motion for
Reconsideration of this Court’s prior Order dismissing Petitioner’s 28 U.S.C. § 2255 motion to
vacate as untimely, (Doc. No. 6). For the reasons that follow, the Court finds that the motion for
reconsideration is an unauthorized, successive petition.
I.

BACKGROUND

Petitioner filed the pending motion for reconsideration pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure, seeking to have this Court review the Court’s Order dismissing
Petitioner’s 28 U.S.C. § 2255 petition. In an order dated March 4, 2013, this Court granted a
motion by the Government to dismiss the petition. (Doc. No. 14). On August 28, 2013, the
Fourth Circuit Court of Appeals dismissed Petitioner’s appeal in an unpublished opinion. United
States v. Nash, 538 Fed. Appx. 362 (4th Cir. 2013). On November 8, 2013, the Fourth Circuit
denied Petitioner’s petition for rehearing. (Doc. No. 19). On June 30, 2014, Petitioner filed the
pending motion for reconsideration in this Court. (Doc. No. 21).
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II.

DISCUSSION

Under 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.” Federal Rule of
Civil Procedure 59(e) allows motions to amend or alter a judgment if the movant shows either an
intervening change in the controlling law, new evidence that was not available at trial, or that
there has been a clear error of law or manifest injustice. Robinson v. Wix Filtration Corp., LLC,
599 F.3d 403, 407 (4th Cir. 2010). A Rule 59(e) motion to alter or amend a judgment must be
construed in the same way as a Rule 60(b) motion for relief from judgment for the purpose of
determining whether the motion is a successive petition. United States v. Pedraza, 466 F.3d 932,
933-34 (10th Cir. 2006) (holding that Rule 59(e) motions must be construed like Rule 60(b)
motions in the second or successive habeas context)).
Where a petitioner seeks relief from a judgment under Rule 60(b) on grounds other than a
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) (requiring district
courts to review Rule 60(b) motions to determine whether such motions are tantamount to a §
2255 motion); see also Alley v. Bell, 101 F. Supp. 2d 588, 669 (W.D. Tenn. 2000), aff’d, 307
F.3d 380 (6th Cir. 2002) (stating that where a Rule 59(e) motion reiterates claims previously
rejected, it falls within the category of cases proscribed by the successive petition doctrine).
With regard to Rule 60(b) motions that are actually attempts at successive collateral
review, the Fourth Circuit has stated that:
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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. See also Gonzalez v. Crosby, 545 U.S. 524, 531-33 (2005) (concluding that a Rule
60(b) motion for relief from judgment that directly challenges the underlying conviction
constitutes a successive § 2254 petition).
Petitioner contends in his motion for reconsideration that other similarly situated
defendants were granted relief and resentencing under the Fourth Circuit Court of Appeals’ en
banc decision in Simmons v. United States, 649 F.3d 237 (4th Cir. 2011), but this Court unfairly
determined that Petitioner was not similarly entitled to Simmons relief. Petitioner contends that
he should be resentenced without a mandatory minimum sentence in light of Simmons. Here,
because Petitioner’s instant motion for reconsideration attacks the validity and length of his
sentence, it is in effect a successive petition, and Petitioner must obtain prior authorization to file
such petition, just as a Rule 60(b) would be subject to prior authorization. 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. Accordingly, the motion for reconsideration must be denied
and dismissed as an unauthorized, successive petition.
III.

CONCLUSION

For the reasons stated herein, Petitioner’s Motion for Reconsideration is denied and
dismissed as an unauthorized, successive § 2255 petition.
IT IS, THEREFORE, ORDERED that:
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1.

Petitioner’s Motion for Reconsideration, (Doc. No. 21), is DENIED as an
unauthorized, successive § 2255 petition.

2.

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: July 22, 2014

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