Miles v. Commonwealth

Filing 11

MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 05/14/14. (kyou, )(copy mailed to Pro Se party)

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

DAMEON T. MILES,

Petitioner,
v.

Civil Action No. 3:13CV829

COMMONWEALTH,

Respondent.
MEMORANDUM OPINION

By Memorandum Opinion and Order entered on March 30, 2012, the Court denied a 28

U.S.C. § 2254 petition from Dameon T. Miles challenging his convictions in the Circuit Court of

the City ofNorfolk for robbery, malicious wounding, possession of imitation cocaine with intent
to distribute within 1,000 feet of school property, and possession with intent to distribute
imitation cocaine. Miles v. Johnson, No. 3:10cv254, 2012 WL 1081462, at *1 (E.D. Va. Mar.

30, 2012); see Miles v. Johnson, No. 3:10cv254, 2010 WL 4791820, at *1 (E.D. Va. Nov. 18,
2010). On December 13, 2013, the Court received from Miles a document titled, "Rule 60(b)
Motion for Relieffrom Judgment." ("Rule 60(b) Motion," ECF No. 1.) As explained below, 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 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).

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 or 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 (internal citation omitted). Here, Miles's Rule 60(b) Motion raises challenges to his
Norfolk 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 Court has not
received authorization from the Fourth Circuit to file the present § 2254 petition. Therefore, the
action will be DISMISSED for want ofjurisdiction.

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 prisonermakes "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)). Because Miles fails to satisfy this standard, a COA will be DENIED.

Anappropriate Final Order will accompany this Memorandum Opinion.

Date: 5fyff
Richmond, Virginia

John A. Gihney. p. yj
United States Disaict/judge