Hagen v. USA

Filing 40

ORDER that within 30 days, Petitioner is permitted to file an amended Rule 59(e) motion, deleting the successive § 2255 claims. If an amended motion is not timely filed, the court will treat the presently pending motion as a successive § 2255 motion. Signed by Senior Judge W. Earl Britt on 10/1/2014. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-394-WEB
(3:08-cr-93-WEB-2)
DAVID A. HAGEN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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ORDER

THIS MATTER is before the Court on Petitioner’s timely motion to alter or amend the
court’s 8 August 2014 judgment pursuant to Federal Rule of Civil Procedure 59(e). (Doc. No.
37). In its 8 August 2014 order, the court granted the Government’s motion for summary
judgment and denied Petitioner’s motion for summary judgment on Petitioner’s 28 U.S.C. §
2255 motion. (Doc. No. 35). By way of the instant motion, Petitioner takes issue with a number
of the court’s conclusions in that order and “requests that this Court reconsider its unlawful
summary disposition . . . and the erroneous denial of discovery and an evidentiary hearing.”
(Doc. No. 37, at 20).
At the outset, the court must evaluate whether Petitioner’s motion is a true Rule 59(e)
motion or whether it is in substance a second § 2255 motion. See United States v. Winestock,
340 F.3d 200, 207 (4th Cir. 2003) (“[D]istrict courts must examine the Rule 60(b) motions
received in collateral review cases to determine whether such motions are tantamount to
successive applications.”).1 If it is a true Rule 59(e) motion, the court will proceed to consider
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Although in Winestock the Fourth Circuit analyzed the treatment of motions for reconsideration filed
pursuant to Federal Rule of Civil Procedure 60(b), many courts, including the Fourth Circuit itself, albeit in
unpublished opinions, evaluate Rule 59(e) motions the same way. See, e.g., United States v. Pedraza, 466 F.3d 932, )
(continued

the merits of the motion. Id. If it is a second or successive § 2255 motion, the court cannot
consider it; rather, the court must dismiss it for lack of jurisdiction so that Petitioner may seek
authorization from the Fourth Circuit Court of Appeals to file it. See 28 U.S.C. § 2244(b),
2255(h). If it is a “mixed petition,” i.e., a motion that presents § 2255 claims as well as claims
which may properly be considered under Rule 59(e), the district court is required to “afford the
applicant an opportunity to elect between deleting the improper claims or having the entire
motion treated as a successive application.” Winestock, 340 F.3d at 207.
“[T]he proper treatment of the motion depends of the nature of the claims presented.” Id.
at 206-07. In distinguishing between “a proper Rule 60(b) motion from a ‘successive
[application] in 60(b)’s clothing[,]’” the Fourth Circuit explains:
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 [v. Calderon, 274 F.3d
1270, 1274 (9th Cir. 2001)]. 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 [v. Litscher, 301 F.3d 873, 876 (7th
Cir. 2002)]; 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

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933 (10th Cir. 2006); United States v. Mann, 141 F. App’x 175, 176 (4th Cir. 2005); United States v. Martin, 132 F.
App’x 450, 451 (4th Cir. 2005); Little v. United States, Civil Action No. 2:95-cv-00978, 2014 WL 584203, at *3
(S.D. W. Va. Feb. 14, 2014), appeal dismissed, No. 14-6467, 2014 WL 3703078 (4th Cir. July 28, 2014); United
States v. Washington, Cr. No. 8:05-399-HMH, 2007 WL 712209, at *2 (D.S.C. Mar. 6, 2007), appeal dismissed, 251
F. App’x 811 (4th Cir. 2007). But see Howard v. United States, 533 F.3d 472, 476 (6th Cir. 2008); Curry v. United
States, 307 F.3d 664, 665 (7th Cir. 2002).

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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 [v.
Cockrell, 302 F.3d 491, 492 & n.1 (5th Cir. 2002)] (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).
Id. at 207 (footnote omitted) (some citations omitted).
Here, Petitioner’s motion is a mixed one. He contends that the court ignored or
mischaracterized some of his § 2255 claims and ignored prescribed case law. (Mot., DE # 37, at
2.) He also argues that this court is partial to the government, refused to allow Petitioner to
conduct discovery, ordered summary judgment against him when the government did not refute
or otherwise oppose all of the issues of material fact Petitioner presented, and should have held
an evidentiary hearing to resolve the disputed facts because Petitioner’s affidavit conflicts with
trial counsel’s affidavit. (Id. at 2-6.) These contentions pertain to purported defects in the
collateral review process, and therefore, they are more appropriately considered in a Rule 59(e)
motion. However, in his motion, Petitioner also continues to argue the merits of his § 2255
claims. (Id. at 6-17.) Such arguments are considered successive § 2255 claims. Because
Petitioner’s motion contains both Rule 59(e) claims and successive § 2255 claims, in accordance
with Winestock, the court will give Petitioner the opportunity to remove the successive claims or
have the court treat the entire motion as successive.
IT IS, THEREFORE, ORDERED that within 30 days, Petitioner is permitted to file an
amended Rule 59(e) motion, deleting the successive § 2255 claims. If an amended motion is not

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timely filed, the court will treat the presently pending motion as a successive § 2255 motion.
This 1 October 2014.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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