Ross v. Mitchell

Filing 41

ORDER denying 39 Motion for relief pursuant to FRCP 60(b). Signed by Honorable G Ross Anderson, Jr on 8/2/2011.(pbri, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE/SPARTANBURG DIVISIONS
Dennis Eugene Ross,
Petitioner,
v.
United States of America,
Respondent.
__________________________________

)
)
)
)
)
)
)
)
)
)

Cr. No.: 7:07-cr-00401-GRA-1
C/A No.: 6:10-cv-01891-GRA
ORDER
(Written Opinion)

This matter comes before the Court on Petitioner’s pro se Motion for relief
pursuant to Federal Rule of Civil Procedure 60(b). Petitioner seeks relief from this
Court’s denial of his petition for relief under 28 U.S.C. § 2241 and from a criminal
conviction entered by this Court. For the reasons stated herein, the Court will deny
Petitioner’s Motion.
Background
Petitioner pled guilty to possession of a firearm and ammunition after
conviction of a felony, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e).
On November 15, 2007, this Court sentenced Petitioner to 180 months
imprisonment, to be followed by five years supervised release. On direct appeal, the
Fourth Circuit Court of Appeals affirmed Petitioner’s conviction and sentence.
United States v. Ross, 312 F. App’x 512, 513 (4th Cir. 2008) (per curiam).
On July 21, 2010, Petitioner filed a motion for relief pursuant to 28 U.S.C.
§ 2241 (the “§ 2241 Motion”). Petitioner also requested entry of default. This
Page 1 of 5

Court denied the Request for Entry of default and ordered that Petitioner’s § 2241
be dismissed without prejudice. Ross v. Mitchell, 6:10-cv-1981-GRA, 2011 WL
1321601, at *2–3 (D.S.C. Apr. 4, 2011).
Petitioner filed the current Motion on July 25, 2011.
Standard of Review
A party moving for relief under any portion of Rule 60(b) “‘must clearly
establish the grounds therefor to the satisfaction of the district court,’ . . . and such
grounds ‘must be clearly substantiated by adequate proof.’“ In re Burnley, 988 F.2d
1, 3 (4th Cir. 1992) (per curiam) (internal citations omitted).
Petitioner brings his Motion pro se. District courts are required to construe
liberally pleadings filed by pro se litigants to allow for the development of a
potentially meritorious claim. See Boag v. MacDougall, 454 U.S. 364 (1982) (per
curiam). Such pleadings are held to a less stringent standard than those drafted by
attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
The liberal construction requirement does not mean that a court can ignore
a clear failure to allege facts that set forth a claim cognizable in a federal district
court. Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Liberal
construction means that if the court can reasonably read the pleadings to state a
valid claim on which the party could prevail, it should do so; however, a district
court may not rewrite a motion to include claims that were never presented, Barnett
v. Hargett, 174 F.3d 1128 (10th Cir. 1999), construct the party’s legal arguments

Page 2 of 5

for him, Small v. Endicott, 998 F.2d 411 (7th Cir. 1993), or “conjure up questions
never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d
1274, 1278 (4th Cir. 1985).
Discussion
Petitioner seeks relief from both the Court’s judgment dismissing his § 2241
Motion and the Court’s underlying judgment of criminal conviction. The Court
separately addresses each portion of Petitioner’s Motion.
I.

Judgment Dismissing the § 2241 Motion
Petitioner first argues this Court lacked subject matter jurisdiction over the §

2241 proceedings and therefore, under Rule 60(b)(6), he is entitled to relief from
this Court’s dismissal of his § 2241 Motion. Rule 60(b)(6) authorizes a court to
grant relief from a judgment for any “reason that justifies relief” not set forth
elsewhere in Rule 60(b). A party seeking relief under Rule 60(b)(6) must show that
“extraordinary circumstances” exist warranting relief. Valero Terrestrial Corp. v.
Paige, 211 F.3d 112, 118 n.2 (4th Cir. 2000).
Petitioner has provided no explanation for his position. Indeed, if this Court
lacked jurisdiction over the proceedings, the appropriate course of action would be
for the Court to dismiss the § 2241 Motion. See, e.g., Keys v. Owen, No. 8:09-cv2978-PMD-BHH, 2009 WL 6325653, at *2 (D.S.C. Dec. 16, 2009) (recommending
dismissal of § 2241 motion for lack of subject matter jurisdiction). Thus, Petitioner
is not entitled to relief from this Court’s judgment dismissing his § 2241 Motion.

Page 3 of 5

II.

Judgment of Conviction
Petitioner also argues that, in his criminal case, this Court lacked personal and

subject matter jurisdiction, and therefore his criminal conviction is void.
Accordingly, Petitioner argues, he is entitled to relief under Rule 60(b). As Petitioner
acknowledges, though, Rule 60(b) does not provide a vehicle by which he may
challenge his criminal conviction. United States v. Grapes, 408 F. App’x 766, 767
(4th Cir. 2011) (per curiam) (internal citations omitted). Thus, Petitioner’s second
argument is without merit.1
IT IS THEREFORE ORDERED that Petitioner’s Motion for relief pursuant to
Federal Rule of Civil Procedure 60(b) (ECF No. 39) be DENIED.
IT IS SO ORDERED.

August 2 , 2011
Anderson, South Carolina

1

The Court has considered construing this argument as a claim for habeas
corpus relief under 28 U.S.C. § 2255. However, in the proceedings on
Petitioner’s § 2241 Motion, which featured the same jurisdiction
argument Petitioner asserts here, Petitioner made clear that he is not
seeking relief under § 2255. Accordingly, this Court will not attempt to
recharacterize Petitioner’s Rule 60(b) Motion as one under § 2255.
Page 4 of 5

NOTICE OF RIGHT TO APPEAL
Pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure,
Petitioner has the right to appeal this Order within sixty (60) days from the date of
its entry. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules
of Appellate Procedure, will waive the right to appeal.

Page 5 of 5