Shabazz v. True

Filing 22

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 10/24/17. (Copy mailed to Shabazz).(jtho, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGIPj.
Richmond Division

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HASSAN SHABAZZ,

OCT 2 ^ 2017

Plaintiff,

CLERK, U.S. DISTRICT COURT
RirHMOND. VA

Civil Action No. 3:04CV361-HEH

V.

WARDEN PAGE TRUE,
Defendant.

MEMORANDUM OPINION

(Denying Rule 60(b)(4) Motion)

By Memorandum Opinion and Order entered on December 7, 2004, the Court
denied Hassan Shabazz's petition to vacate, set aside, or correct his sentence pursuant to

28 U.S.C. § 2254. See Shabazz v. Attorney Gen. ofVa., No. 3:14CV824, 2016 WL
2349110, at *1 (E.D. Va. May 3, 2016) (citation omitted). The United States Court of
Appeals for the Fourth Circuit dismissed Shabazz's appeal. Shabazz v. Braxton, 91 F.

App'x 296 (4th Cir. 2004). By Memorandum Opinion and Order entered on May 3,
2016, the Court dismissed a second § 2254 petition filed by Shabazz as successive and
unauthorized. Shabazz, No. 3:14CV824, 2016 WL 2349110, at *2. Undeterred, on May
22, 2017, Shabazz filed a motion pursuant to Federal Rule of Civil Procedure Rule

60(b)(4) ("Rule 60(b) Motion," ECF No. 21). As explained below, the Rule 60(b)
Motion must be treated as a successive, unauthorized 28 U.S.C. § 2254 motion.
Hie Antitcrrorism and Effective Death Penalty Act of 1996 restricted the

jurisdiction of the district courts to hear second or successive applications for federal
habeas corpus relief by prisoners attacking the validity of their convictions and sentences

by establishing a "gatekeeping mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996)
(citing 28 U.S.C. § 2244(b)(3)) (internal quotation marks omitted). Specifically,
"[bjefore a second or successive application permitted by this section 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).
The United States Court of Appeals for the Fourth Circuit has held "that district
courts must treat Rule 60(b) motions as successive collateral review applications when

failing to do so would allow the applicant to 'evade the bar against relitigation of claims
presented in a prior application or the bar against litigation of claims not presented in a
prior application.'" United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003)
(quoting Calderon v. Thompson, 523 U.S. 538, 553 (1998)). Additionally, the Fourth

Circuit has provided the following guidance in distinguishing between a proper Rule
60(b) motion and an improper successive § 2254 motion:
[A] motion directly attacking the prisoner's conviction or sentence will
usually amount to a successive application, while a motion seeking a
remedy for some defect in the collateral review process will generally be
deemed a proper motion to reconsider. Thus, a brand-new, free-standing
allegation of constitutional error in the underlying criminal judgment will

virtually always implicate the rules governing successive applications.
Similarly, new legal arguments or proffers of additional evidence will
usually signify that the prisoner is not seeking relief available under Rule
60(b) but is instead continuing his collateral attack on his conviction or
sentence.

Id. at 207 (internal citation omitted). Here, Shabazz's Rule 60(b) Motion raises

challenges to his firearm and robbery convictions, rather than any defects in his federal
habeas proceedings. Accordingly, the Court must treat the Rule 60(b) Motion as a

successive § 2254 petition. The Clerk will be directed to assign a civil action number to
the successive, unauthorized § 2254 Petition (ECF No. 21). The § 2254 Petition will be
dismissed for want ofjurisdiction.

An appeal may not be taken from the Hnal order in a § 2254 proceeding unless a

judge issues a certificate of appealability ("COA"). See 28 U.S.C. § 2253(c)(1)(A). A
COA will not issue unless a prisoner makes "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). This requirement is satisfied only when

"reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were

'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S.
473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). Shabazz
has not satisfied this standard. Accordingly, a certificate of appealability will be denied.
An appropriate Order shall issue.

A
Date;

Richmond, Virginia

Henry E. Hudson
United States District Judge