McCary v. USA

Filing 42

ORDER by Judge Ronald A. White denying defendant's motion for relief pursuant to Rule 60(b)(6) and Rule 60(d)(3) F.R.Cv.P. ( 34 Motion for Miscellaneous Relief) for lack of jurisdiction and denying as moot defendant's motion to proceed in forma pauperis ( 35 Motion for Leave to Proceed in Forma Pauperis) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Respondent/Plaintiff,
v.
TOMMY BLAKE McCARY,
Petitioner/Defendant.

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Case No. CIV-13-493-RAW
(CR-11-25-RAW)

ORDER
Before the court is the motion of the petitioner for relief pursuant to Rule 60(b)(6)
and Rule 60(d)(3) F.R.Cv.P. On April 20, 2015, this court denied petitioner’s motion
pursuant to 28 U.S.C. §2255 (#22). Petitioner appealed and the Tenth Circuit denied a
certificate of appealability and dismissed the appeal (#30). Congress has restricted the filing
of second or successive habeas petitions. 28 U.S.C. §2244(b). Rule 60(b) motions constitute
second or successive petitions if they in substance or effect assert or reassert a federal basis
for relief from the petition’s underlying conviction. United States v. Rogers, 2016 WL
3974094 (10th Cir.2016). The pending motion fits this description. In the present motion,
petitioner attempts to raise a new claim of actual innocence. Such a claim is subject to 28
U.S.C. §2255(h), i.e., it qualifies for treatment as a second or successive habeas claim. See
United States v. Kostelec, 474 Fed.Appx. 745 n.1 (10th Cir.2012). The same is true to the
extent the motion relies upon Rule 60(d)(3) when (as here) movant’s fraud-on-the-court
allegations relate solely to his underlying criminal conviction. See United States v. Baker,
718 F.3d 1204, 1206 (10th Cir.2013).

Pursuant to 28 U.S.C. §2244(b)(3)(A), before a second or successive application is
filed in the district court, applicant must move in the appropriate court of appeals for an order
authorizing the district court to consider the application. When a second or successive §2255
claim is filed in the district court without the required authorization from the Tenth Circuit,
the district court may transfer the matter to the Tenth Circuit if it determines it is in the
interest of justice to do so under 28 U.S.C. §1631, or it may dismiss the motion or petition
for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1252 (10th Cir.2008). The court will
dismiss the motion.
It is the order of the court that the motion for relief (#34) is hereby dismissed for lack
of jurisdiction. The motion to proceed in forma pauperis (#35) is denied as moot.

ORDERED THIS 2nd DAY OF AUGUST, 2016.

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