Makdessi v. Watson

Filing 62

MEMORANDUM OPINION. SEE OPINION FOR COMPLETE DETAILS. Signed by District Judge M. Hannah Lauck on 01/05/2018. Copy mailed to Petitioner as directed.(ccol, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA ~-­
Richmond Division

-

ADIB EDDIE RAMEZ MAKDESSI,

CLERK.

Petitioner,

- 5 2018

u.s. u;s, ~1CT couRT

RICHMOND VA

v.

Civil Action No. 3:09CV214
Civil Action No. - - - -

BRYAN WATSON,
Respondent.

MEMORANDUM OPINION
Petitioner Adib Eddie Ramez Makdessi was convicted in the Circuit Court for City of
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. Makdessi 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 of a document Makdessi filed with the Court sent to the "Chief
Division Counsel, Richmond F.B.I." and other federal officials that lodged complaints about the
criminal process. (See id. at 1.) 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." (ECF No. 39.) Makdessi listed 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 labeling his motion as a Rule 60(b) Motion, Makdessi continued to attack his state

convictions. By Memorandum Opinion and Orderentered on June 16,2016, the Court dismissed

the Rule 60(b) Motion as a successive, unauthorized 28 U.S.C. § 2254 petition. (ECF Nos. 46,
47.)

OnJune 26,2017, the Court received from Makdessi a "Motion Rule 60(d)(1) and

(d)(3)," in which he purports to "invok[e] this Court's jurisdiction... for fraud upon the initial

federal habeas court and grave miscarriage ofjustice." (ECF No. 57, at 1.)' On August 11,
2017, the Court received a second "Motion Rule 60(d)(1) and (d)(3)" from Makdessi. ("Rule
60(d) Motion," ECF No. 60.) Makdessi indicates, "[t]his 16pagesMotion is to substitute the 15

pages Motion in Docket 57, with the same Exhibits in Docket 57apply to this Motion." (Rule
60(d) Mot. 1.) The Court will substitute theAugust 11,2017 Rule 60(d) Motion for themotion
submitted on June26,2017. The August 11, 2017 Rule 60(d) Motion will SUPPLANT the

previously filed motion. Accordingly, the action now proceeds on the August 11,2017 Rule
60(d) Motion only. The Clerk will be DIRECTED TO TERMINATE the motion submitted on

June 26, 2017 (ECF No. 57).

In his Rule 60(d) Motion, Makdessi once again lists eleven "frauds" that, in essence,

assert his innocence, and argues that the prosecution "deliberate[ly] cover[ed]-up ... exculpatory
evidence." (Rule 60(d) Mot. 4, 5-16.) Despite labeling the motion as one brought pursuant to
Rule 60(d), Makdessi again attacks his state convictions.

' The Court corrects the capitalization in quotations from Makdessi's submissions. The
Courtemploys the pagination assigned by the CM/ECF docketing system for citations to
Makdessi's Rule 60(d) Motion.

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 oftheir 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 orsuccessive application permitted by this section is filed in the

district court, the applicant shall move in the appropriate court ofappeals 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 ofclaims presented in aprior
application or the bar against litigation ofclaims not presented in aprior 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 continumg his collateral attack on his
conviction or sentence.

Id. at 207 (citations omitted). Here, Makdessi's Rule 60(d) Motion raises challenges to his
Virginia Beach convictions, rather than any defects in his federal habeas proceedings. Makdessi
argues that he is actually innocent ofhis state convictions and enumerates purported errors that

occurred during his state trial. See Gonzalez v. Crosby, 545 U.S. 524,530-32 (2005) (construing
3

amotion as asuccessive habeas corpus application ifit seeks vindication ofaclaim for relief

from the criminal judgment, regardless ofthe title on the motion).^ Accordingly, the Court must

treat the Rule 60(d) Motion as asuccessive §2254 petition. Cf. UnitedStates v. Merica,

Nos.5:04CR00015,5;llCV80375, 2011 WL 6325881, at *1 (W.D. Va. Dec. 16,2011)
(construmg action under Fed. R. Civ. P. 60(d) as asuccessive §2255 motion). The Court has not

received authorization from the Fourth Circuit to file the present §2254 petition. Therefore, the
action will be DISMISSED WITHOUT PREJUDICE for want ofjurisdiction.

Makdessi has also filed aMotion for the Appointment of Counsel. (ECF No. 58.) No
constitutional right exists to have counsel appointed in post-conviction proceedings. Mackall v.
Angelone, 131 F.3d 442, 449 (4th Cir. 1997). The Court, however, may appoint counsel to a

financially eligible person ifjustice so requires. See 18 U.S.C. §3006A(a)(2)(B). Makdessi fails

to demonstrate that the interests ofjustice warrant the appointment ofcounsel at this juncture.
Accordingly, Makdessi's Motion for the Appointment ofCounsel (ECF No. 58) will be
DENIED.

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

issues acertificate of appealability. 28 U.S.C. §2253(c)(1)(A). Acertificate ofappealability
will not issue unless a prisoner makes "asubstantial showing ofthe denial ofaconstitutional

right." 28 U.S.C. §2253(c)(2). This requirement is satisfied only when "reasonablejurists 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
While Makdessi adds statements such as, the "Officers ofthe Courts covered-up from
all Courts ... exculpatory evidence" in his federal habeas proceedings {see, e.g.. Rule 60(d) Mot.

6), Makdessi raises no true defect in the collateral review process. At most, he appears to argue,
unsuccessfully, that false evidence presented by the prosecutors and exculpatory evidence

allegedly hidden by them during his criminal proceedings rendered his federal habeas
proceedings unfair. (See, e.g., id. at 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.

M. Hannal

Date: J4N "5 2018
Richmond, Virginia

United Sta

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