Jelks v. USA
ORDER DENYING DEFENDANT'S 48 MOTION FOR RELIEF FROM JUDGMENT. Signed by Judge J. Daniel Breen on 8/2/17. (Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,
Cr. No. 1:09-cr-10009-JDB-1
ORDER DENYING DEFENDANT’S MOTION FOR RELIEF FROM JUDGMENT
Before the Court is a motion filed by Movant, Felix Jelks, for relief from the judgment in
this case pursuant to Federal Rule of Civil Procedure 60(b)(4). (Docket Entry (“D.E.”) 48.) On
February 23, 2015, the Court denied Movant’s 28 U.S.C. § 2255 motion and judgment was
entered the next day. (D.E. 27 & 28.) Jelks claims that judgment is void because the Court did
not consider the third supplemental reply to the government’s response. (D.E. 48 at PageID
196.) For the following reasons, the motion is DENIED.
Case Number 1:09-cr-10009
On November 17, 2009, Movant pleaded guilty to one count of conspiracy to possess
over 500 grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 846. (Criminal
(“Cr.”) D.E. 53; see also Cr. D.E. 4.) Jelks later filed a motion to withdraw his guilty plea, (Cr.
D.E. 98), which the Court rejected (Cr. D.E. 119). Following sentencing and the entry of
judgment, he filed a pro se notice of appeal. (Cr. D.E. 130.) In the appellate court, Movant’s
attorney submitted a motion to withdraw and a brief wherein he opined that there were no
colorable issues to appeal in accordance with Anders v. California, 386 U.S. 738, 744 (1967).
Order, United States v. Jelks, No. 11-5460 (6th Cir. Jan. 9, 2012) (Cr. D.E. 142 at PageID 379.)
The Sixth Circuit Court of Appeals independently reviewed the record and agreed that there were
no viable issues. (Id. at PageID 379-80.) In particular, the Sixth Circuit noted that Jelks’s
“guilty plea was constitutionally valid and the district court substantially complied with the
procedural requirements for accepting his plea.” (Id. at PageID 380.) The court rejected his
direct appeal on January 6, 2012, granting his counsel’s motion to withdraw and affirming the
judgment of this Court. (Id. at PageID 382.)
Case Number 1:13-cv-01007
On January 4, 2013, Jelks filed a motion under 28 U.S.C. § 2255, alleging that his trial
and appellate counsel provided ineffective assistance. (D.E. 1.) As relevant to the instant
motion, Movant averred that appellate counsel was ineffective for “failing to raise on appeal the
Court’s violation of [Federal Rule of Criminal Procedure] 11(d) and the validity of his guilty
plea.” (D.E. 1-1 at PageID 13-14.) After the government responded to the motion, Jelks filed a
reply, (D.E. 18), which he subsequently supplemented on three occasions (D.E. 22, 23 & 24).
This Court denied the § 2255 motion on February 23, 2015. (D.E. 27.) Because the third
supplemental reply had been improperly docketed as a pending motion, this Court directed the
clerk to “terminate [D.E. 24] as a pending motion.” (D.E. 27 at PageID 167.) Judgment was
entered the next day. (D.E. 28.) Movant again sought review in the Court of Appeals, which
concluded that his § 2255 motion was without merit. (D.E. 32, 43.) While the second appeal
was pending, Jelks moved this Court to re-open its judgment denying his § 2255 motion under
Rule 60(b)(1) and (6) of the Federal Rules of Civil Procedure, based on the inadvertent omission
from the District’s Electronic Case Filing system of a single page of his amended memorandum.
(D.E. 34; see D.E. 3, 29, 39.) The Court denied that motion on August 7, 2015. (D.E. 39.)
Thereafter, Jelks moved to alter or amend judgment under Federal Rule of Civil Procedure 59(e).
(D.E. 41.) That motion was denied as time-barred, with the Court noting that it would also fail
on the merits. (D.E. 45 at PageID 253.) On February 24, 2017, Jelks filed the instant motion
requesting relief from the judgment pursuant to Federal Rule of Civil Procedure 60(b)(4). (D.E.
The Court must first determine whether it has authority to consider the inmate’s motion.
“A motion under Rule 60(b) may be treated as a second or successive habeas petition if
necessary to enforce the requirements of the [Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA)].” Tyler v. Anderson, 749 F.3d 499, 506 (6th Cir. 2014). If a Rule 60(b) motion
is treated as such, it is barred from consideration because, pursuant to 28 U.S.C. § 2244(b), “[a] .
. . prisoner may not file a second or successive habeas corpus petition until the court of appeals
issues an order authorizing the district court to consider the petition.” Id. (citing 28 U.S.C. §
2244(b)(3)(A)). However, a motion that “does not attack a determination on the merits” is not a
“successive habeas petition” if it only addresses “‘some defect in the integrity of the federal
habeas proceedings.’” Id. at 507 (quoting Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)). The
instant motion does not attack the merits of the Court’s February 23, 2015 determination but
instead requests that the judgment be reopened due to the Court’s alleged failure to consider the
third supplement to Movant’s reply. This motion can therefore be considered on the merits.
Rule 60(b)(4) of the Federal Rules of Civil Procedure allows a court to “relieve a party . .
. from a final judgment” where “the judgment is void.” Jelks contends that the judgment should
be set aside because the Court did not consider his third supplemental reply, in contravention of
Rule 5(d) of the Rules Governing Section 2255 Proceedings (“Section 2255 Rules”), which
allows the moving party to “submit a reply to the respondent’s answer or other pleading . . . .”
Movant bases this contention on the fact that the Court instructed the clerk to terminate docket
entry 24 as a pending motion. (D.E.. at PageID 298.) He avers that consideration of that
document “would have changed the results in this case because it demonstrate[d] the ability to
withdraw [his] guilty plea.” (Id.) This alleged error, he insists, amounted to a violation of his
due process rights. (Id. at PageID 296.)
Jelks is correct that the Court ordered the clerk to “terminate [the third supplemental
reply] as a pending motion,” but he misunderstands the impact of that directive. (See D.E. 27 at
PageID 167.) The reply had been improperly docketed as a motion, and the order had the effect
of correcting that mistake. It did not, as Jelks seem to believe, mean that the Court failed to
consider the argument presented in that document. Movant’s third reply concerned his appellate
attorney’s failure to attack his guilty plea by “alleg[ing] an error under [Federal Rule of Criminal
Procedure] 11.” (D.E. 24 at PageID 144.) A review of this Court’s order denying the § 2255
motion belies Jelks’s assertion, as demonstrated by the following excerpt:
Jelks contends that appellate counsel failed to investigate the plea colloquy
for Rule 11 violations and to determine if his plea was voluntary. ([D.E] No. 3 at
PageID 23.) Contrary to Defendant’s allegation, [his attorney] reviewed the
record for any meritorious appealable issue before certifying that none existed.
([D.E.] 14-2 at PageID 97.) The Sixth Circuit Court of Appeals independently
examined the record and found “that his attorney made an adequate review of the
record and that there [was] no viable issue to appeal. (Cr. [D.E.] 142 at PageID
379-80.) The appellate court determined that Jelks’[s] plea was knowing and
voluntary and that the district court complied with the procedural requirements for
accepting his plea. (Id. at PageID 380-81.) . . . [C]ounsel was not ineffective by
failing to raise and pursue frivolous issues.
(D.E. 27 at PageID 185.) Thus, contrary to Movant’s assertion, the Court did consider the
argument contained in his third supplemental reply.
Despite Jelks’s repeated attempts to attack the judgment in this case, the record reflects
that both this Court and the Sixth Circuit Court of Appeals have determined that his guilty plea
was validly entered. His contention that he was denied due process based on this Court’s failure
to consider his third reply is without merit. Furthermore, Rule 60(c)(1) requires that motions
under subsection (b)(4) be made “within a reasonable time.” Jelks waited two years after entry
of the judgment to raise this challenge, an unreasonable delay for which he has provided no
explanation. See Days Inn Worldwide, Inc. v. Patel, 445 F.3d 899, 906 (6th Cir. 2006) (finding
that Rule 60(b)(4) motion filed eleven months after service of default judgment was
unreasonable). Movant’s Rule 60(b)(4) motion is DENIED
Based on the foregoing and the record as a whole, Jelks’s motion is denied. In its
February 23, 2015 order, the Court denied a certificate of appealability, finding that his “claim
lacked substantive merit and, therefore, he cannot present a question of some substance about
which reasonable jurists could differ.” (D.E. 27 at 20). The Court finds Movant’s instant motion
to be similarly meritless, and therefore DENIES a certificate of appealability. As for any other
appeal related to this matter, it is CERTIFIED, pursuant to Federal Rule of Appellate Procedure
24(a), that it would not be taken in good faith, and leave to appeal in forma pauperis is DENIED.
If Jelks files a notice of appeal, he must also pay the full $505.00 appellate filing fee, see
28 U.S.C. §§ 1913, 1917, or file a motion to proceed in forma pauperis and supporting affidavit
in the Court of Appeals within thirty days, see Fed. R. App. P. 24(a)(4)-(5).
IT IS SO ORDERED this 2nd day of August 2017.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE
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