Echols v. Angelone

Filing 2

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 6/12/13. Copy sent: Yes(tdai, )

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

ROY FRANKLIN ECHOLS,

JR.,

Petitioner,
v.

Civil Action No.

3:01CV155

Civil Action No. 3:13CV 3") %
RONALD ANGELONE,

Respondent.
MEMORANDUM OPINION

By Memorandum Opinion and Order entered on June 18,

the

Court

Franklin

denied
Echols,

a petition
Jr.

under

challenging

28

his

U.S.C.

§ 2254

Virginia

2001

by Roy

convictions

for

two counts of murder, one count of malicious wounding, and three
related

(E.D.

firearm

Va.

June

offenses.

18,

Echols

2001).

received

a

"MOTION

FOR

Motion"),

wherein Echols

Civil Procedure 60(b).

On

RELIEF

v.

Angelone,

October

12,

FROM

requests

No.

2012,

JUDGMENT"

relief under

3:01cvl55

the

Court

("Rule

60(b)

Federal Rule

of

The 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

second

successive

or

jurisdiction

of

the

applications

district

for

federal

courts

habeas

to

hear

corpus

relief by prisoners attacking the validity of their convictions
and sentences by establishing a "gatekeeping mechanism."

v.

Turpin,

518 U.S.

651,

657

(1996)

Felker

(internal quotation marks

omitted).

Specifically,

application permitted by

court,

the

applicant

"[b]efore

this

shall

a

second

or

successive

section is filed in the

move

in

the

appropriate

district

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
has

Fourth Circuit

held

that

collateral

inmates

attacks

inventive

(4th

on

labeling.

200,

206

district

Cir.

courts

may

the

bar

on

convictions

their

See

avoid

and

sentences

United

2003) .

must

not

States
Fourth

The

treat

v.

Circuit

Rule

60(b)

successive

Winestock,
has

motions

as

340

held

by
F.3d

"that

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.'"
Calderon

v.

Thompson,

Circuit

provided

523

the

between a proper Fed.

U.S.

538,

following
R.

Civ.

P.

Id.

553

(1998)).

guidance

in

60(b)

(quoting

The

Fourth

distinguishing

motion and an improper

successive § 2255 motion:

[A]
motion
directly
conviction or sentence
successive application,
remedy

for

process

will

some

defect

attacking
the
prisoner's
will usually amount to a
while a motion seeking a
in

the

generally be deemed

collateral

review

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).

Echols's

Rule

60(b)

Motion

does

not

raise

defects in this Court's § 2254 review process.

Rather,

continues to challenge his underlying convictions.
Echols's
§ 2254

Rule

60(b)

Motion

petition.

must

Because

be

the

treated
Court

procedural

as

has

Echols

Therefore,
a

successive

not

received

authorization from the Fourth Circuit to file the petition, the
action will be dismissed for want of jurisdiction.
An appeal may not be taken from the final order in a § 2254

proceeding unless a judge issues a certificate of appealability
("COA").

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

requirement

is

right."

satisfied

debate whether (or,
should

have

been

issues

presented

resolved

were

to

only when

in

a

^adequate

§ 2253(c)(2).

"reasonable

agree that)

different

to

manner

deserve

This

jurists

could

the petition
or

that

encouragement

the

to

Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quoting Barefoot v.

fails

U.S.C.

for that matter,

proceed further.'"

Echols

28

Estelle,

satisfy

463 U.S.

this

880, 893 & n.4

standard.

certificate of appealability will be denied.

(1983)).

Accordingly,

a

The

Clerk

is

directed

to

send

a

copy

of

this

Memorandum

Opinion to Echols and counsel for Respondent.

Date:

n
, •?
\JUMJl Il>j2*6(p

Richmond*; Virginia

/s/

Robert E. Payne

Htf

Senior United States District Judge