Makdessi v. Watson
Filing
46
MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 06/15/2016. Copy mailed to Petitioner. (walk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
JUN I 6 20l6
Cl.ERK, U.S. DI
ICT COURT
RICHMOND VA
ADIB EDDIE RAMEZ MAKDESSI,
Petitioner,
Civil Action No. 3:09CV214
Civil Action No.3: l6CV373
v.
BRYAN WATSON,
Respondent.
MEMORANDUM OPINION
Petitioner Adib Eddie Ramez Makdessi was convicted in the Circuit Court for Virginia
Beach and "is currently serving two life sentences for first-degree murder for the May 14, 1996
killings of Elise Makdessi, his wife, and Quincy Brown, Elise's co-worker at Naval Air Station
Oceana" and an additional thirteen years for two firearm crimes. Afakdessi v. Watson, 682 F.
Supp. 2d 633, 636 (E.D. Va. 2010). By Memorandum Opinion and Order entered on February 4,
2010, this Court denied Makdessi's petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. See id at 657; (ECF Nos. 17, 18). On June 28, 2010, the Court received from Makdessi
a submission entitled "Criminal Complaints & MOTION Rule 60(b)." (ECF No. 24.) Despite
being labeled in part as a Federal Rule of Civil Procedure 60(b) motion, the submission appeared
to be a reference copy filed with the Court of a document Makdessi sent to the "Chief Division
Counsel, Richmond F.B.1." and other federal officials that lodged complaints about the criminal
process. (See id at I.) By Memorandum Order entered on July 6, 2010, the Court construed this
submission to be Makdessi' s attempt to file a criminal complaint and informed Makdessi that it
would take no further action on his submission. (ECF No. 25.)
On November 2, 2015, the Court received from Makdessi a ''MOTION 60(b) Fraud Upon
The Court and Fraud Upon The Habeas Court" ("Rule 60(b) Motion," ECF No. 39.)1 Makdessi
lists nine repetitive claims essentially arguing that he is actually innocent of his crimes of
conviction and that the prosecution tampered with or "covered-up" purportedly exculpatory
evidence. (See, e.g., id. at i.) Despite his labeling of his motion as a Rule 60(b) Motion,
Makdessi continues to attack his state convictions. As explained below, Makdessi's Rule 60(b)
Motion must be treated as a successive, unauthorized 28 U.S.C. § 2254 petition.
The Antiterrorism 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) (internal quotation marks omitted).
Specifically, "[b]efore 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).
1
Makdessi has attempted continuously to attack his Virginia Beach convictions and to
argue that he is actually innocent due to some error during trial. Just prior to Makdessi's filing
of the instant Rule 60(b) Motion, the Court dismissed a civil rights action filed by Makdessi in
which he attacked his convictions. Makdessi v. McAulifle, No. 3:14CV214, 2015 WL 5970178,
at *2 (E.D. Va. Oct. 13, 2015). In rejecting his claims, the Court explained:
Much like the claims he raised in his 28 U.S.C. § 2254 petitioner that this Court
denied on February 4, 2010, see, e.g., Makdessi, 682 F. Supp. at 648-49, 657,
Makdessi continues to insist that he is actually innocent of his crimes of
conviction, and that Defendants "conspired by covering-up" and "tampered with"
allegedly exculpatory evidence and committed fraud upon the Circuit Court.
(Campi. Attach. 8.) Makdessi's allegations in the instant§ 1983 action mirror his
fanciful and outlandish claims of innocence and of the purported wrongdoings in
his criminal proceedings from his prior habeas petition.
Id.
Having unsuccessfully pursued his 42 U .S.C. § 1983 action, Mak.dessi now attempts to
challenge his state convictions in this closed 2009 habeas action.
2
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 § 2255 motion or
habeas petition:
[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 (citations omitted). Here, Makdessi's Rule 60(b) Motion raises challenges to his
Virginia Beach convictions, rather than any defects in his federal habeas proceedings. Makdessi
argues that he is actually innocent of his state convictions and enumerates purported errors that
occurred during his state trial. See Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005) (construing
a motion as a successive habeas corpus application if it seeks vindication of a claim for relief
from the criminal judgment, regardless of the title on the motion). 2 Accordingly, the Court must
treat the Rule 60(b) Motion as a successive § 2254 petition. The Court has not received
2
Makdessi raises no defect in the collateral review process. At most he contends that his
actual innocence "makes [him] qualify for [a] § 1983 action because [he] was prevented by all
courts from filing habeas or any kind of motions." (Rule 60(b) Mot. ii.) The Court fails to
discern how the prohibition on second or successive attempts to challenge his convictions
entitles him to relief under Rule 60(b ).
3
authorization from the Fourth Circuit to file the present§ 2254 petition. Therefore, the action
will be DISMISSED for want of jurisdiction.
Makdessi has also filed a Motion for the Appointment of Counsel (ECF No. 44) and a
Motion for an Evidentiary Hearing (ECF No. 45). Because the Court lacks jurisdiction to hear
Makdessi's successive§ 2254 petition, no need exists for an evidentiary hearing. Makdessi's
Motion for an Evidentiary Hearing (ECF No. 45) will be DENIED. In addition, no constitutional
right to have appointed counsel in post-conviction proceedings exists. Mackall v. Angelone, 131
F.3d 442, 449 (4th Cir. 1997). The Court, however, may appoint counsel to a financially eligible
person if justice so requires. See 18 U.S.C. § 3006A(a)(2)(B). Makdessi fails to demonstrate
that the interests of justice warrant the appointment of counsel at this juncture. Accordingly,
Makdessi's Motion for the Appointment of Counsel (ECF No. 44) will be DENIED. 3
An appeal may not be taken from the final order in a§ 2254 proceeding unless a judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(l)(A). A certificate of appealability
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
3
To the extent Makdessi claims that the Court never responded to his "First Motion 60(b)
in (ECF 24)," (see ECF No. 44, at 1) Makdessi is incorrect. The Court construed the motion as
an attempt to file a criminal complaint and informed Makdessi that the Court would take no
further action on that submission. (See ECF No. 25.)
4
proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 & n.4 (1983)). Because Makdessi fails to satisfy this standard, a certificate of
appealability will be DENIED.
An appropriate Order shall issue.
Date: J\JN 1 6 2016
Richmond, Virginia
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