McCoy v. USA

Filing 27

MEMORANDUM DECISION denying 17 Motion to Set Aside Judgment. The Court DENIES Petitioner a certificate of appealability. Signed by Judge Ted Stewart on 1/29/19. (jlw)

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

v.

MEMORANDUM DECISION AND
ORDER DENYING 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 Federal Rule of
Civil Procedure 60(b). For the reasons discussed below, the Court will deny the Motion.
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 being a 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 by filing a motion to suppress.
After conducting an evidentiary hearing, the Court denied Petitioner’s motion to suppress on
December 18, 2012. The Court concluded that the officer had a reasonable suspicion that
Petitioner had committed a traffic violation. More specifically, the Court found that the officer
had reasonable suspicion to conduct a traffic stop under Utah’s left-lane statute, Utah Code Ann.
§ 41-6a-704.

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Petitioner proceeded to trial, where he was found guilty on all counts. Petitioner was
sentenced to 200 months in the custody of the Bureau of Prisons, to be followed by 60 months of
supervised release.
Petitioner appealed his conviction and challenged the Court’s ruling on the motion to
suppress. The Tenth Circuit Court of Appeals affirmed the Court’s decision denying the motion
to suppress and affirmed Petitioner’s conviction.
Petitioner timely filed a motion under 28 U.S.C. § 2255 on June 3, 2016. Petitioner
argued: (1) his counsel was ineffective for failing to raise specific arguments in relation to his
motion to suppress; (2) his counsel was ineffective for not retaining expert services in relation to
his motion to suppress; (3) the ruling on the motion to suppress was erroneous because the Court
failed to find that Petitioner impeded traffic; and (4) counsel on appeal was ineffective for raising
the suppression issue as a mistake of law.
The Court denied Petitioner’s § 2255 motion on September 13, 2016. The Court rejected
Petitioner’s ineffective assistance of counsel claims on the merits. As to Petitioner’s claim that
the ruling on the motion to suppress was erroneous, the Court found that it was procedurally
barred because of Petitioner’s challenge to the Court’s suppression order on appeal. Petitioner
appealed the Court’s ruling on his § 2255 motion and the Tenth Circuit denied Petitioner’s
request for a certificate of appealability (“COA”) on December 13, 2016.
On March 19, 2018, Petitioner filed the instant Motion pursuant to Fed. R. Civ. P. 60(b).
Petitioner argued that the Court erred in concluding the suppression issue was procedurally
barred. The Court dismissed Petitioner’s Motion for lack of jurisdiction, finding that it was an

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unauthorized second or successive § 2255 petition. The Tenth Circuit vacated the Court’s ruling
and remanded for the Court to consider the Motion on the merits.
II. DISCUSSION
Petitioner does not explicitly state under which provision of Rule 60(b) his Motion is
brought. Motions under Rule 60(b)(1), (2), and (3) must be made “no more than a year after the
entry of the judgment or order or the date of the proceeding.” 1 Here, the Court denied
Petitioner’s § 2255 motion on September 13, 2016, and judgment was entered that same day.
Petitioner waited until March 19, 2018, to file the instant Motion. As a result, it cannot be
considered under Rule 60(b)(1), (2), or (3).
Petitioner specifically states that his Motion does not fit the criteria provided in Rule
60(b)(1), (2), or (3), but goes on to state that if the Court finds that it does fall within those
provisions, he should be given permission for leave to file out of time. However, a court may
not extend the time to act under Rule 60(b). 2 Therefore, to the extent Petitioner’s Motion falls
within Rule 60(b)(1), (2), or (3), it is untimely.
Rule 60(b)(4) provides relief from void judgments and “is not subject to any time
limitation.” 3 “A void judgment is a legal nullity.” 4 “[A] void judgment is one so affected by a
fundamental infirmity that the infirmity may be raised even after the judgment becomes final.
The list of such infirmities is exceedingly short; otherwise, Rule 60(b)(4)’s exception to finality

1

Fed. R. Civ. P. 60(c).

2

Fed. R. Civ. P. 6(b)(2).

3

Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994).

4

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010).

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would swallow the rule.” 5 Thus, “Rule 60(b)(4) applies only in the rare instance where a
judgment is premised either on a certain type of jurisdictional error or on a violation of due
process that deprives a party of notice or the opportunity to be heard.” 6
Petitioner’s Motion fails to demonstrate either type of defect. Petitioner does not argue
that the Court lacks jurisdiction over him or his claims. “A federal habeas court applying a
procedural bar, even if in error, is not acting in the absence of jurisdiction over the habeas
proceeding.” 7 Further, there is “no authority for the notion that procedural-bar rulings—or
rulings on such other procedural matters as statute of limitations or exhaustion, which also
pretermit relief on the merits of a claim—violate due process and are ‘void’ under Rule 60(b)(4)
if they are in error.” 8 Therefore, his claim fails under Rule 60(b)(4).
Rule 60(b)(5) applies when “the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable.” Here, the judgment has not been satisfied, released, discharged, reversed, or
vacated, and Petitioner has not shown that applying it prospectively is no longer equitable.
This leaves only Rule 60(b)(6). Motions under Rule 60(b)(6) “must be made within a
reasonable time.” 9 Here, Petitioner was aware of the issue he raises in his Motion on the date he
received the Court’s prior order. This is evidenced by an examination of the arguments he made
when seeking a COA from the Court’s denial of his § 2255 motion. Petitioner argued, as he does

5

Id. (internal citation omitted).

6

Id. at 271.

7

Weldon v. Pacheco, 715 F. App’x 837, 843 (10th Cir. 2017).

8

Id.

9

Fed. R. Civ. P. 60(c)(1).

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here, that violation of Utah’s left-lane statue requires traffic being impeded. 10 Similarly, when
seeking reconsideration of the Tenth Circuit’s COA denial, Petitioner argued that he did not
impede traffic in the left lane, that this Court never ruled that he impeded traffic and, as a result,
the Tenth Circuit “has not ruled whether Mr. McCoy ever actually impeded traffic in the left lane
or not.” 11 This is the same issue raised in the instant Motion. Yet, instead of seeking relief in
this Court right away, he waited to file this Motion for a year-and-a-half after the Court’s denial
of his § 2255 motion and over a year after the Tenth Circuit denied his request for a COA. The
Tenth Circuit has upheld the denial of relief under Rule 60(b)(6) in similar circumstances. 12
Petitioner argues that prison transfers and secure placement prevented him from raising
this issue before the Court. However, this argument is belied by the fact that he did raise the
issue before the Tenth Circuit. It stands to reason that if Petitioner had the ability to raise it
there, he could have raised it here. Having failed to do so in a reasonable time, it is untimely and
must be denied.
Even if Petitioner’s Motion was timely, it fails on the merits. Rule 60(b)(6) allows a
party to seek relief from a final judgment for “any other reason that justifies relief.” Relief under
Rule 60(b)(6) requires a showing of extraordinary circumstances, which “will rarely occur in the
habeas context.” 13 Petitioner argues that the Court’s procedural bar ruling was erroneous
because the Tenth Circuit did not specifically rule on his argument that Utah’s left-lane statute is
10

Memorandum in Support of Certificate of Appealability, United States v. McCoy, 164179 (10th Cir. Nov. 17, 2016).
11

Petitioner’s Motion to Reconsider COA at 3, United States v. McCoy, 16-4179 (10th
Cir. Mar. 1, 2017).
12

United States v. Mack, 502 F. App’x 757, 759–60 (10th Cir. 2012) (collecting cases).

13

Gonzales v. Crosby, 545 U.S. 524, 535 (2005).

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only violated by impeding traffic. This argument, however, is merely a different way to argue
that the officer lacked reasonable suspicion to conduct the stop. Both this Court and the Tenth
Circuit have concluded that the officer did have reasonable suspicion. Petitioner “basically
revisits, albeit in somewhat different forms, the same issues already addressed and dismissed by
the court.” 14 This is not the purpose of a 60(b) motion.
Moreover, Petitioner’s underlying argument fails because it ignores the language of the
left-lane statute. Utah Code Ann. § 41-6a-704 provides, in relevant part:
(2) On a highway having more than one lane in the same direction, the operator of
a vehicle traveling in the left general purpose lane:
(a) shall, upon being overtaken by another vehicle in the same lane, yield to the
overtaking vehicle by moving safely to a lane to the right; and
(b) may not impede the movement or free flow of traffic in the left general
purpose lane.
(3) An operator of a vehicle traveling in the left general purpose lane that has a
vehicle following directly behind the operator’s vehicle at a distance so that less
than two seconds elapse before reaching the location of the operator’s vehicle
when space is available for the operator to yield to the overtaking vehicle by
traveling in the right-hand lane is prima facie evidence that the operator is
violating Subsection (2).
In its order denying the motion to suppress, the Court found that “the evidence
demonstrates that Trooper Riches observed Defendant’s vehicle traveling in the left general
purpose lane while being overtaken by another vehicle in the same lane at a distance so that only
1.5 seconds elapsed before reaching the location of Defendant’s vehicle. Trooper Riches also
observed that there was space available for Defendant to yield to the overtaking vehicle by
traveling in the right-hand lane.”15 This evidence provided prima facie evidence that Petitioner

14

Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (internal quotations
marks and citation omitted).
15

Case No. 2:12-CR-218 TS, Docket No. 46, at 4.

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was violating the left-lane statute in light of Utah Code Ann. § 41-6a-704(3). Petitioner’s
argument that the Court and the officer misconstrued the statute lacks any support in the statute
or case law. Moreover, even if the officer did misinterpret the statute, reasonable suspicion can
rest on a reasonable mistake of law. 16 After all, the question is whether the officer had
reasonable suspicion of a traffic violation, not whether there actually was a violation. 17 Based on
the language of §41-6a-704(3) and the officer’s observations, it was reasonable for the officer to
believe that Petitioner had committed a traffic violation, thereby providing reasonable suspicion
for the stop. For these reasons, Petitioner’s Motion must be denied.
III. CONCLUSION
It is therefore
ORDERED that Defendant’s Motion for Relief Under Federal Rule of Civil Procedure
60(b) (Docket No. 17) is DENIED. The Court DENIES Petitioner a certificate of appealability.
DATED this 29th day of January, 2019.
BY THE COURT:

Ted Stewart
United States District Judge

16

Heien v. North Carolina, 135 S. Ct. 530, 536 (2014)

17

United States v. Vercher, 358 F.3d 1257, 1263 (10th Cir. 2004).

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