Wilson v. United States of America

Filing 18

ORDER TRANSFERRING MOTION FOR RECONSIDERATION TO THE SIXTH CIRCUIT COURT OF APPEALS AS A SECOND OR SUCCESSIVE PETITION. Signed by Chief Judge S. Thomas Anderson on 6/13/18. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
MARIO WILSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civ. No. 2:14-cv-02611-STA-tmp

ORDER TRANSFERRING MOTION FOR RECONSIDERATION
TO THE SIXTH CIRCUIT COURT OF APPEALS
AS A SECOND OR SUCCESSIVE PETITION
Before the Court is Petitioner Mario Wilson’s motion for reconsideration of the Court’s
orders denying relief under 28 U.S.C. § 2255. (ECF No. 16) For the reasons that follow, the
motion is TRANSFERRED to the Sixth Circuit Court of Appeals as a second or successive
petition.
On August 6, 2014, Petitioner, Mario Wilson, filed a pro se 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence ("Petition”). (ECF No. 1.) He subsequently filed a
motion to amend the Petition to add a claim under Johnson v. United States, 135 S. Ct. 2551
(2015), and a second motion to amend to add additional claims. (ECF Nos. 3 and 8.) By order
dated July 20, 2017, the Court denied the motion to amend to add a Johnson claim, and directed
Petitioner to show cause why the Petition should not be denied as untimely and for failure to
state a claim. (ECF No. 9.)
Wilson thereafter filed a response to the show-cause order. (ECF No. 11.) On September
11, 2017, the Court denied the second motion to amend on the grounds that amendment would be

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futile, and dismissed the Petition as untimely and for failure to state a claim. (ECF No. 12 at 5 &
n.1, 7.) Judgment was entered the same day. (ECF No. 13.)
Petitioner filed a notice of appeal on October 13, 2017. (ECF No. 14.) On May 11,
2018, he filed in the district court his motion for reconsideration. (ECF No. 16.) On May 30,
2018, the United States Court of Appeals for the Sixth Circuit denied Petitioner a certificate of
appealability. (ECF No. 17.)
The Federal Rules of Civil Procedure do not expressly provide for motions for
reconsideration. Nevertheless, courts normally construe such motions as motions to alter or
amend a judgment under Rule 59(e). See e.g., In re Greektown Holdings, LLC, 728 F.3d 567,
574 (6th Cir. 2013); Bohannon v. Baptist Mem’l Hosp.-Tipton, No. 08-2220-STA, 2010 WL
2569285, at *2 (W.D. Tenn. June 21, 2010). A Rule 59(e) motion “must be filed no later than 28
days after the entry of the judgment.” Fed. R. Civ. P. 59(e). Here, Wilson filed his motion
several months after entry of judgment. “A motion for reconsideration, filed outside the time
permitted under Fed. R. Civ. P. 59(e), is properly construed as a motion for relief from judgment,
pursuant to Fed. R. Civ. P. 60(b).” Donaldson v. Cent. Michigan Univ., 109 F. App’x 15, 17 (6th
Cir. 2004).
Although much of the motion is confusing, several arguments are sufficiently cogent to
apprise the Court of Petitioner’s purpose in seeking post-judgment relief. Wilson’s primary
argument is related to the Supreme Court’s recent “resolution of the residual clause question” in
Sessions v. DiMaya, 138 S. Ct. 1204 (2018). (Id. at 1, 2.) He argues that DiMaya entitles him to
relief from the enhancement of his sentence under 18 U.S.C. § 924(e)(1) (“ACCA”). The Court
also construes the motion as asserting that Wilson’s attorney rendered ineffective assistance by
failing to anticipate the ruling in DiMaya. (Id. at 3.) Petitioner also challenges his conviction on

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the basis of “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 fact
finder would have found [him] guilty of the offense.” (Id. at 2.)
All of these arguments are new collateral attacks on Petitioner’s conviction. The motion
is therefore a second or successive petition under 28 U.S.C. § 2244(b)(3)(A). See Gonzalez v.
Crosby, 545 U.S. 524, 532 (2005) (holding a Rule 60 motion is a second or successive habeas
petition where it “seeks to add a new ground for relief”). “Before a second or successive
application . . . is filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application.” 28 U.S.C. §
2244(b)(3)(A). Wilson has not yet obtained authorization from the appellate court to file his new
claims.
Petitioner’s motion is therefore TRANSFERRED to the United States Court of Appeals
for the Sixth Circuit as a second or successive petition. See In re Sims, 111 F.3d 45, 47 (6th Cir.
1997) (holding that districts courts should transfer to the appellate court second or successive
petitions filed without authorization from the Sixth Circuit).
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: June 13, 2018.

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