Jones v. USA

Filing 39

ORDER dismissing 30 Motion to Vacate ; granting 34 Motion to Dismiss; denying 37 Motion to Stay Signed by Chief Judge David C Norton on 08/30/11.(kozi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
WILL ROGERS JONES,

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Petitioner,
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vs.
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UNITED STATES OF AMERICA,
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Respondent.
)
______________________________________)

Civil No. 2:03-cv-03861-DCN

ORDER AND OPINION

This matter is before the court on petitioner Will Rogers Jones’ pro se motion to
set aside an order pursuant to Federal Rule of Civil Procedure 60, subsections (b)(4) and
(6). In response, the government filed a motion to dismiss the petition, or in the
alternative, a motion for summary judgment. For the reasons set forth below, the court
dismisses the motion for lack of jurisdiction.
I. BACKGROUND
On February 9, 2001, a jury found petitioner guilty of bank robbery and multiple
weapons offenses, and on February 21, 2002, the undersigned sentenced petitioner to 480
months in prison. On February 22, 2002, petitioner filed a direct appeal, and the Fourth
Circuit affirmed petitioner’s conviction and sentence on October 25, 2002.
On December 8, 2003, petitioner filed a motion to vacate pursuant to 28 U.S.C. §
2255. Petitioner asserted numerous ineffective assistance of counsel claims, both at the
trial and appellate level, including failure to object to an allegedly improper calculation of
his base offense level under the sentencing guidelines and failure to challenge the

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convictions used to sentence petitioner as a Career Offender. This court addressed these
allegations in an order dated July 19, 2006, and found them without merit. Petitioner
appealed this court’s ruling, and the Fourth Circuit dismissed his appeal on December 21,
2006.
On February 16, 2011, petitioner filed the instant pro se motion. Petitioner claims
that: (1) this court improperly applied the sentencing guidelines, (2) petitioner’s due
process rights were violated by ineffective counsel at the sentencing, and (3) both his
sentence and § 2255 judgment should be voided.
II. PRO SE PETITIONS
Petitioner is proceeding pro se in this case. Pro se complaints and petitions should
be construed liberally by this court and are held to a less stringent standard than those
drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), cert.
denied, 439 U.S. 970 (1978). Courts classify pro se pleadings from prisoners according
to their contents, without regard to their captions. United States v. Winestock, 340 F.3d
200, 203 (4th Cir. 2003). A federal district court is charged with liberally construing a
complaint or petition filed by a pro se litigant to allow the development of a potentially
meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). Liberal construction,
however, does not mean that the court can ignore a clear failure in the pleading to allege
facts that set forth a cognizable claim. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387,
390-91 (4th Cir. 1990).

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III. DISCUSSION
Prior to any review on the merits, the district court “must examine the Rule 60(b)
motions received in collateral review cases to determine whether such motions are
tantamount to successive applications.” Winestock, 340 F.3d at 207.
As amended by the [Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA)], § 2255 bars successive applications unless they contain
claims relying on
(1) newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.
28 U.S.C.A. § 2255 ¶ 8.
Id. at 204. The restriction on successive applications applies to both novel claims brought
in a second or successive application, as well as those claims that merely repeat the
claims presented in a previous application. Id. While there is no magic formula for
making a distinction between a successive and a non-successive Rule 60(b) motion, “a
relatively straightforward guide is that a motion directly attacking the prisoner’s
conviction or sentence will usually amount to a successive application.” Id. at 207. The
purpose of this review is to “distinguish a proper Rule 60(b) motion from a ‘successive
application in 60(b)’s clothing.’” Id. (quoting Lazo v. United States, 314 F.3d 571, 573
(11th Cir. 2002)). If this court finds a motion successive to a previous application, it
“must either dismiss the motion for lack of jurisdiction or transfer it to [the Fourth

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Circuit] so that [they] may perform [their] gatekeeping function under § 2244(b)(3).”
Winestock, 340 F.2d at 207.
This court has liberally construed petitioner’s allegations, but cannot find any nonsuccessive claims within his Rule 60(b) motion. In alleging that the court improperly
applied the sentencing guidelines, petitioner is merely repeating a claim rejected by both
this court and the Fourth Circuit on direct appeal. This court considered and dismissed
petitioner’s ineffective assistance of counsel claims in petitioner’s previous § 2255
motion, and the Fourth Circuit summarily dismissed these claims. Petitioner’s third and
final claim is essentially a restatement of his first two claims in a conclusory fashion.
Petitioner has not articulated, nor can this court discern, anything more than a
successive application to his previous § 2255 motion. Petitioner’s Rule 60(b) motion is
an attempt to have this court re-review his prior arguments under the guise of a new
heading. This court does not have the jurisdiction to consider such matters without the
express permission of the Fourth Circuit. See Winestock, 340 F.3d at 205 (citing 28
U.S.C. § 2244(b)(3)). Therefore, for the reasons set forth above, defendant’s motion to
dismiss is GRANTED, and petitioner’s motion is DISMISSED for lack of jurisdiction.
AND IT IS SO ORDERED.1

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Accordingly, petitioner’s motion to stay and request for judicial review, filed on
April 18, 2011, is DENIED.
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________________________________________
DAVID C. NORTON
CHIEF UNITED STATES DISTRICT JUDGE
August 30, 2011
Charleston, South Carolina

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