Terrelonge v. USA
Filing
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ORDER Denying 19 Motion to Reopen Case and Denying 20 Motion for Preliminary Injunction. Signed by District Judge Robert J. Conrad, Jr on 9/24/2018. (Pro se litigant served by US Mail.)(jaw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:14-cv-360-RJC
(3:09-cr-229-RJC-DCK-1)
MICHAEL GENE TERRELONGE,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
____________________________________ )
ORDER
THIS MATTER comes before the Court on Petitioner’s “Petition [to] Review and Reopen
Merg With Admiralty Commercial Law (Admiralty Rules 4, 5, 6, 7) with Bond by Way of Rule
5,” (Doc. No. 19), and “Motion for Preliminary Injunction and Declaratory Relief under 28 U.S.C.
§ 1651,” (Doc. No. 20).
I.
INTRODUCTION
Petitioner was convicted following a jury trial of: Count (1), conspiracy to commit armed
bank robbery; Count (2), armed bank robbery and aiding and abetting; Counts (3), (5), and (7),
possession and brandishing a firearm during and in relation to a crime of violence and aiding and
abetting; Count (4) armed bank robbery; and Count (6), armed bank robbery. (3:09-cr-229, Doc.
No. 82). He was sentenced to a total of 744 months’ imprisonment followed by three years of
supervised release. (Id.). The Fourth Circuit Court of Appeals affirmed, United States v.
Terrelonge, 520 Fed. Appx. 151 (4th Cir. 2013), and the Supreme Court denied certiorari,
Terrelonge v. United States, 571 U.S. 895 (2013).
Petitioner sought § 2255 relief in the instant case, raising 12 claims for relief. The Court
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denied the § 2255 petition on the merits and denied a certificate of appealability pursuant to Rule
11(a) of the Rules Governing Section 2255 Cases because Petitioner did not make a substantial
showing of the denial of a constitutional right. Terrelonge v. United States, 2015 WL 7738379
(W.D.N.C. 2015). He did not appeal.
Petitioner filed the instant “Petition [to] Review and Reopen…” on March 4, 2017, (Doc.
No. 19), and the “Motion for Preliminary Injunction and Declaratory Relief Under 28 U.S.C. §
1651” on April 10, 2017, (Doc. No. 20).
II.
(1)
DISCUSSION
Petition to Review and Reopen
In the “Petition [to] Review and Reopen…,” Petitioner asks the Court to reopen the § 2255
case and grant him a certificate of appealability pursuant to Buck v. Davis, 137 S.Ct. 759 (2017).
Petitioner contends that the Court denied his request for a certificate of appealability without
providing notice of the denial. He argues that he satisfied the standard for obtaining a certificate
of appealability but that the Court ignored his undisputable evidence and denied the certificate of
appealability.
First, Petitioner has failed to identify any procedural vehicle under which he can obtain
relief. The Petition to Review and Reopen cannot be viewed as a Rule 59 motion to alter or amend
the judgment because it was not filed within 28 days after entry of the judgment. Fed. R. Civ. P.
59(e). If the Petition to Review and Reopen is treated as a motion for relief from judgment under
Rule 60(b) of the Federal Rules of Civil Procedure, it likewise time-barred. Liberally construing
the Petition to Review and Reopen, it appears that Petitioner is seeking relief under Rule 60(b)(6)
which provides for relief from judgment for “any other reason that justifies relief.” Fed. R. Civ. P.
60(b)(6). Such a motion must be filed within a “reasonable time,” Fed. R. Civ. P. 60(c), and the
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party moving for relief from judgment under Rule 60(b) bears the burden of demonstrating
timeliness. Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295 (4th Cir. 2017).
Petitioner appears to argue that he filed the instant Petition to Review and Reopen within a
reasonable time after the United States Supreme Court issued Buck, which addresses the standard
for granting a certificate of appealability in habeas cases.1 Petitioner’s reliance on Buck is
unavailing because a change in decisional law subsequent to a final judgment provides no basis
for relief under Rule 60(b)(6). Dowell v. State Farm Fire Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th
Cir. 1993). Therefore, to the extent Petitioner seeks relief under Rules 59(e) and/or 60(b), his
Petition to Review and Reopen is time-barred and Petitioner has failed to identify any other
procedural mechanism under which relief can be granted.
Second, Petitioner’s claim that the Court erred by denying a certificate of appealability is
meritless. A certificate of appealability may issue only if the applicant has made a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Rule 11(a), Rules
Governing Section 2255 Cases. A petitioner must show that reasonable jurists could debate
whether the petition should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S.
322, 338 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
When the Court denied Petitioner’s § 2255 Motion to Vacate, it declined to issue a
certificate of appealability because Petitioner “ha[d] not made a substantial showing of a denial of
a constitutional right.” (Doc. No. 16 at 8). The Court cited Miller-El v. Cockrell, 537 U.S. 322
(2003) for the proposition that, “in order to satisfy § 2253(c), a petitioner must demonstrate that
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The instant Petition to Review and Reopen was filed 10 days after Buck was issued.
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reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” (Id.) (citing 28 U.S.C. § 2253(c)(2)). Petitioner’s suggestion that the Court was
obligated to provide him with any additional notice that a certificate of appealability was denied
is incorrect. The Court cited the appropriate authority and set forth its denial of the certificate of
appealability as required by the applicable rules. See 28 U.S.C. § 2253(c)(2); Rule 11(a), Rules
Governing Section 2255 Cases.
Petitioner has also failed to establish that the Court’s denial of the certificate of
appealability was based on the wrong legal standard or was otherwise erroneous. The Supreme
Court case upon which Petitioner relies, Buck, does not aid Petitioner. In Buck, the Court
confirmed that the standard for obtaining a certificate of appealability is whether “jurists of reason
could disagree with the district court’s resolution of his constitutional claims or … could conclude
the issues presented are adequate to deserve encouragement to proceed further.” 137 S.Ct. at 773
(quoting Miller-El, 537 U.S. at 327). The threshold inquiry asks only if the district court’s decision
was debatable. Id. at 774 (quoting Miller-El, 537 U.S. at 327). The Court’s denial of a certificate
of appealability was in accordance with the governing standard and that conclusion is not
undermined by Buck.
For all the foregoing reasons, Petitioner’s Petition to Review and Reopen will be denied.
(2)
Motion for Preliminary Injunction
In his “Motion for Preliminary Injunction…,” Petitioner appears to allege that the prison
is depriving him of legal mail and/or access to the courts. He contends that the prison mailroom
received an envelope addressed to Petitioner from this Court on March 31, 2017, containing filings
from the instant case. The mailroom read the mail and forwarded it to the “S.I.S. Department,”
where a unit manager told Petitioner that the mail would either be thrown away or put in Plaintiff’s
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central file because “the document contains U.C.C. materials that he would not be allowed to
have.” (Id.). Petitioner chose to have the mail deposited in his central file. The unit manager
informed Petitioner that he “can get a 300 series shot” for having the U.C.C. materials, and that
“S.I.S. [is] coming to confiscate any other documents that Petitioner has in his possession.” (Doc.
No. 20 at 2). Petitioner seeks declaratory judgment, the immediate return of the documents, and
an order that the Respondents “stand down” and return the documents from his central file. (Doc.
No. 20 at 2).
It appears that Petitioner is attempting to challenge the conditions of his confinement rather
than his criminal conviction and sentence. A § 1983 action “is a proper remedy for a state prisoner
who is making a constitutional challenge to the conditions of his prison life, but not to the fact or
length of his custody.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). Therefore, if Petitioner
chooses to pursue the claims raised in his Motion for Preliminary Injunction, he should seek relief
in a separately filed civil suit seeking relief from the conditions of his confinement pursuant to §
1983.2
The relief Petitioner seeks in his Motion for Preliminary Injunction is not cognizable in
this § 2255 action and it will therefore be denied.
III.
CONCLUSION
For the reasons stated herein, the “Petition to Review and Reopen…” and “Motion for
Preliminary Injunction…” are denied.
IT IS, THEREFORE, ORDERED:
1) Petitioner’s “Petition [to] Review and Reopen Merg With Admiralty Commercial Law
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The Court makes no representations about the timeliness, procedural viability, or merit of such an action.
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(Admiralty Rules 4, 5, 6, 7) with Bond by Way of Rule 5,” (Doc. No. 19), is DENIED.
2) Petitioner’s “Motion for Preliminary Injunction and Declaratory Relief under 28 U.S.C.
§ 1651,” (Doc. No. 20), is DENIED.
Signed: September 24, 2018
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