McCoy v. USA

Filing 18

MEMORANDUM DECISION dismissing 17 Motion for Relief Under Federal Rule of Civil Procedure. Signed by Judge Ted Stewart on 4/3/18. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
HICKORY WESLEY McCOY,

v.

MEMORANDUM DECISION AND
ORDER DISMISSING PETITIONER’S
MOTION FOR RELIEF

UNITED STATES OF AMERICA,

Civil Case No. 2:16-CV-487 TS

Petitioner,

District Judge Ted Stewart

Respondent.

This matter is before the Court on Petitioner’s Motion for Relief under Fed. R. Civ. P.
60(b). For the reasons discussed below, the Court finds Petitioner’s Motion to be an
unauthorized second or successive § 2255 petition and that it is not in the interests of justice to
transfer the Motion to the Tenth Circuit Court of Appeals. Therefore, the Court will dismiss this
matter for lack of jurisdiction.
I. BACKGROUND
On April 25, 2012, Petitioner was charged in a three-count Indictment with possession of
marijuana with intent to distribute, possession of a firearm in furtherance of a drug trafficking
crime, and felon in possession of a firearm and ammunition. The charges against Petitioner
stemmed from a traffic stop conducted on January 24, 2012.
Prior to trial, Petitioner challenged the legality of the stop. After conducting an
evidentiary hearing, the Court denied Petitioner’s motion to suppress. The Court concluded that
the officer had a reasonable suspicion that Petitioner had committed a traffic violation.

1

Petitioner appealed, challenging the Court’s ruling on the motion to suppress. The Tenth
Circuit Court of Appeals affirmed the Court’s decision to deny the motion to suppress.
Petitioner timely filed a motion under 28 U.S.C. § 2255. Petitioner argued, among other
things, that the Court’s ruling on the motion to suppress was erroneous. In particular, Petitioner
argued that the suppression order failed to find or hold that Petitioner impeded traffic in the left
lane.
The Court rejected Petitioner’s argument. The Court noted that it had found that
Petitioner committed a left-lane violation, which “necessarily included the finding that Petitioner
impeded traffic.” 1 Thus, the Court denied Petitioner’s § 2255 motion and the Tenth Circuit
denied Petitioner’s request for a certificate of appealability. In its order, the Tenth Circuit too
noted that it had concluded that the record supported this Court’s reasonable suspicion
determination. 2
Petitioner now files the instant Motion. Petitioner argues that the judgment should be set
aside because the Court misconstrued Utah’s left-lane violation statute, which resulted in an
erroneous suppression ruling. Petitioner argues that the Court erred in not addressing this issue
in its previous ruling.
II. DISCUSSION
The Tenth Circuit has provided the “steps to be followed by district courts in this circuit
when they are presented with a Rule 60(b) motion in a habeas or § 2255 case.” 3 The Court must

1

Docket No. 10, at 4.

2

Docket No. 16, at 3.

3

Spitznas v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006).

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first determine “whether the motion is a true Rule 60(b) motion or a second or successive
petition.” 4
If the district court concludes that the motion is a true Rule 60(b) motion, it
should rule on it as it would any other Rule 60(b) motion. If, however, the district
court concludes that the motion is actually a second or successive petition, it
should refer the matter to [the Tenth Circuit] for authorization . . . . 5
A Rule 60(b) “motion is a second or successive petition if it in substance or effect asserts
or reasserts a federal basis for relief from the petitioner’s underlying conviction.” 6
Conversely, it is a “true” 60(b) motion if it either (1) challenges only a
procedural ruling of the habeas court which precluded a merits determination
of the habeas application, or (2) challenges a defect in the integrity of the
federal habeas proceeding, provided that such a challenge does not itself lead
inextricably to a merits-based attack on the disposition of a prior habeas
petition. 7
Petitioner argues that the Court failed to address an issue he raised in his § 2255 Motion.
Specifically, Petitioner takes issue with the Court’s supposed failure to find or rule that he
impeded traffic. The lack of such a ruling, he contends, “eviscerates the suppression order.” 8
A “contention that the district court failed to consider one of [Petitioner’s] habeas claims
represents a ‘true’ 60(b) claim.” 9 While Petitioner argues that the Court failed to address his
argument, Petitioner’s contention is incorrect. In his § 2255 motion, Petitioner argued that the
Court failed to find or hold that Petitioner impeded traffic. 10 As set forth above, the Court did
4

Id.

5

Id. at 1217.

6

Id. at 1215.

7

Id. at 1215–16 (citation omitted).

8

Docket No. 14, at 2.

9

Spitznas, 464 F.3d at 1225.

10

Docket No. 1, at 7

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find that Petitioner committed a left-lane violation, which “necessarily included the finding that
Petitioner impeded traffic.” 11 The Tenth Circuit similarly concluded that the Court’s reasonable
suspicion determination was supported by the record. 12 Thus, the Court did consider this
argument and Petitioner’s Motion is not a true 60(b) motion.
Instead, the Court finds that Petitioner’s Motion is a second or successive petition.
Through the instant Motion, Petitioner continues to challenge the Court’s ruling on the
suppression issue in his criminal case. As such, Petitioner is asserting a federal basis for relief
from his underlying conviction. Therefore, the Court construes the instant Motion as a second or
successive § 2255 motion. 13
“Before a federal prisoner may file a second or successive motion under § 2255, the
prisoner must first obtain an order from the appropriate court of appeals authorizing the district
court to consider the motion.” 14 “A district court does not have jurisdiction to address the merits
of a second or successive § 2255 . . . claim until [the appropriate court of appeals] has granted
the required authorization.” 15 However, before transferring a second or successive motion under

11

Docket No. 10, at 4.

12

Docket No. 16, at 3.

13

The Court recognizes that generally the Court must notify a litigant if it intends to
recharacterize the pleading as a § 2255 motion. See Castro v. United States, 540 U.S. 375, 383
(2003). In this case, however, lack of notification of the recharacterization will not prejudice the
Defendant because this is his second motion and he has not obtained an order from the Tenth
Circuit authorizing the Court to consider the Motion. See United States v. Martin, 357 F.3d
1198, 1200 (10th Cir. 2004). Additionally, since this is Defendant’s second § 2255 Motion, the
concerns that require notification in the first instance are not at issue. See United States v.
Torres, 282 F.3d 1241, 1245–46 (10th Cir. 2002).
14

In re Cline, 531 F.3d 1249, 1250 (10th Cir. 2008).

15

Id. at 1251.

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§ 2255 to the court of appeals for authorization, the Court must consider whether it is in the
interest of justice to do so. 16
The Tenth Circuit has outlined factors a court should consider in determining whether it
is in the interest of justice to transfer a second or successive § 2255 motion. These factors
include:
whether the claims would be time barred if filed anew in the proper forum,
whether the claims are likely to have merit, and whether the claims were filed in
good faith or if, on the other hand, it was clear at the time of the filing the court
lacked the requisite jurisdiction. 17
Considering these factors, the Court finds that it is not in the interest of justice to transfer
Defendant’s Motion. Defendant’s claim would be time-barred under 28 U.S.C. § 2255(f).
Defendant’s claim is not likely to have merit and was previously rejected in his initial § 2255
petition. This demonstrates a lack of good faith on the part of Defendant. Therefore, the Court
finds that it is not in the interest of justice to transfer Defendant’s Motion.
III. CONCLUSION
It is therefore
ORDERED that Defendant’s Motion for Relief Under Federal Rule of Civil Procedure
60(b)(4) (Docket No. 17) is DISMISSED FOR LACK OF JURISDICTION.
DATED this 3rd day of April, 2018.
BY THE COURT:

Ted Stewart
United States District Judge
16

See 28 U.S.C. § 1631.

17

In re Cline, 531 F.3d at 1251.

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