Tate v. USA

Filing 22

ORDER denying 21 Motion for relief from Judgment. The court declines to issue a certificate of appealability.. Signed by District Judge Max O. Cogburn, Jr on 1/6/2016. (Pro se litigant served by US Mail.)(chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:13-cv-00283-MOC
JOSEPH BERNARD TATE,

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Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the court on petitioner’s Motion for Relief from Judgment
(#21). The “Judgment” from which petitioner appears to seeks relief is not the January 30, 2014,
Judgment (#20) entered in this civil action, but the May 10, 2013, initial screening Order (#2) in
which this court dismissed as frivolous his misapplication of a guidelines cross reference at
sentencing. Reading such motion in a light most favorable to petitioner, the court has considered
the motion to seek relief from the actual Judgment (#20).
In his original petition, petitioner asked that the “cross-reference be removed also because
he is innocent of that as well, [due] to the provisions of, USSG §2K2.1(c)(1), 3B1.3(a)(2),
§3D1.1(d), and §1B1.3(a)(2), and §2D1.2(d).” In conducting the initial screening, the court found
such contention to be frivolous as sentencing errors not rising to the level of constitutional errors
are not properly brought under Section 2255, citing United States v. Mikalajunas, 186 F.3d 490,
496 (4th Cir. 1999) (holding that “a misapplication of the guidelines typically does not constitute
a miscarriage of justice.”). The court further found that § 2255 “is reserved for transgressions of
constitutional rights and for a narrow range of injuries that could not have been raised on direct

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appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Segler,
37 F.3d 1131, 1133 (5th Cir.1994) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th
Cir.1992) (per curiam).
A.

Second/Successive Petition

Finally, the court has considered whether this Rule 60(b) motion is a true Rule 60(b) motion
or a successive petition. In distinguishing between the two, the Court of Appeals for the Fourth
Circuit has held as follows:
Our holding raises the question of how to distinguish a proper Rule 60(b) motion
from a “successive [application] in 60(b)'s clothing.” Lazo v. United States, 314
F.3d 571, 573 (11th Cir.2002) (per curiam). There may be no infallible test for
making this distinction, but a relatively straightforward guide is that 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.
Thus, a brand-new, free-standing allegation of constitutional error in the underlying
criminal judgment will virtually always implicate the rules governing successive
applications. See, e.g., Cooper, 274 F.3d at 1274. Similarly, new legal arguments
or proffers of additional evidence will usually signify that the prisoner is not
seeking relief available under Rule 60(b) but is instead continuing his collateral
attack on his conviction or sentence. See, e.g., Dunlap, 301 F.3d at 876; cf.
Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 870 (4th Cir.1999)
(“Rule 60(b) does not authorize a motion merely for reconsideration of a legal
issue.” (internal quotation marks omitted)). By contrast, an example of a proper
Rule 60(b) claim is an allegation that government agents perpetrated a fraud on the
court during the collateral review proceedings. See, e.g., Dunlap, 301 F.3d at 875–
76; cf. Dunn, 302 F.3d at 492 & n. 1 (declining to apply limits on successive
applications to Rule 60(b) motion based on counsel error that prevented applicant
from perfecting appeal in § 2254 proceeding).
United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003)(footnote omitted).

While

petitioner’s claim as to the enhancement was raised in the original petition, he has advanced new
legal arguments (discussed in the alternative, infra) in support of reviving such dismissed
contention. Inasmuch as petitioner now contends for the first time that use of a cross reference for
murder is of constitutional magnitude, such new legal argument signifies to this court that
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petitioner is continuing his collateral attack on his conviction or sentence. Applying Winestock,
the court concludes that petitioner’s Rule 60(b) motion is a second or successive petition, which
is not cognizable before this court without petitioner first seeking and securing permission from
the Court of Appeals for the Fourth Circuit. Such motion is, therefore, dismissed.
B.

Rule 60(b)

In an abundance of caution, the court has also considered the substance of petitioner’s
motion under Rule 60(b), but only in the event it is determined by a reviewing court that such
motion is not a second or successive petition. Petitioner argues that the court improperly applied a
cross reference under §2D1.1(d)(1) for murder because he was never convicted of murder. He
contends that he “should only be punished for his alleged involvement in a murder if the
government proved to a jury and beyond a reasonable doubt, that he committed the murder.”
Motion (#21) at 2. Petitioner further contends that this court improperly dismissed such contention
because a sentencing error in applying a §2D1.1(d)(1) cross reference for murder is so substantial
as to constitute a “miscarriage of justice.”
Petitioner cites the court to no authority for such newly advanced legal theories and the
court’s own research reveals no such case law. Indeed, petitioner misstates the burden for
application of a cross reference, which is proof by a preponderance of the evidence. United States
v. Davis, 679 F.3d 177, 182 (4th Cir. 2012) (citing United States v. Heater, 63 F.3d 311, 322 (4th
Cir. 1995)). Thus, even if petitioner had properly advanced such new legal arguments under Rule
60(b), such arguments would be without merit and not entitle him to relief under any subsection
of Rule 60(b).

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ORDER
IT IS, THEREFORE, ORDERED that petitioner’s Motion for Relief from Judgment
(#21) is DENIED as a second or successive petition under Section 2255 and, in the alternative, as
being substantively without merit if considered under Rule 60(b).

Denial of Certificate
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: January 5, 2016

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