Brooks v. United States of America
Filing
155
ORDER For the reasons set forth in the Proposed Findings and Recommendations of the Magistrate Judge, the Court Denies Mr. Brooks' 153 Objections as to Joestilles DeMarco Brooks; the Court further Adopts the 152 Magistrate Judge's Prop osed Findings and Recommendations, Denies, Mr. Brooks' motion, and Dismisses, With Prejudice, this case from the docket of the Court; the Court Denies a certificate of appealability. Signed by Judge Robert C. Chambers on 6/3/2014. (cc: attys; any unrepresented party) (skm)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
JOESTILLES DEMARCO BROOKS,
Defendant/Petitioner,
v.
CRIMINAL ACTION NO. 3:02-00092
(CIVIL NO. 3:05-0163)
UNITED STATES OF AMERICA,
Respondent.
ORDER
Pending before the Court is Defendant/Petitioner Joestilles Demarco Brooks’ pro
se Objections to the Magistrate Judge’s Proposed Findings and Recommendation. ECF No. 153.
In his Objections, Mr. Brooks asserts that the Magistrate Judge improperly construed his motion as
a successive petition under 28 U.S.C. § 2255, rather than a motion under Rules 60(b) and 15(c) of
the Federal Rules of Civil Procedure.
Mr. Brooks contends his current claims should be
considered under Rules 60(b) and 15(c) because he is asking this Court to reconsider its 2011
denial of his original § 2255 Petition. Mr. Brooks specifically argues that, in light of recent case
law, he was denied ineffective assistance at trial and that he is entitled to an evidentiary hearing.
Upon de novo review, the Court finds the Magistrate Judge correctly considered
Mr. Brooks’ motion as a collateral attack on his conviction and sentence under § 2255 and his
request for an evidentiary hearing is so intertwined with his collateral attack that it cannot be
considered a motion under Rule 60(b). Moreover, as found by the Magistrate Judge, even if it
were a Rule 60(b) motion, the motion would be denied as being untimely because it was filed two
and one-half years after this Court’s 2011 ruling.
Accordingly, for these and the other reasons set forth in the Proposed Findings and
Recommendations of the Magistrate Judge, the Court DENIES Mr. Brooks’ Objections. ECF No.
153.
The Court further ADOPTS the Magistrate Judge’s Proposed Findings and
Recommendations, DENIES, Mr. Brooks’ motion, and DISMISSES, WITH PREJUDICE, this
case from the docket of the Court.
The Court additionally has considered whether to grant a certificate of
appealability. See 28 U.S.C. § 2253(c). A certificate will not be granted unless there is a
substantial showing of the denial of a constitutional right. Id. at § 2253(c)(2). The standard is
satisfied only upon a showing that reasonable jurists would find that any assessment of the
constitutional claims by this Court is debatable or wrong and that any dispositive procedural ruling
is likewise debatable. Miller El v. Cockrell, 537 U.S. 322, 336 38 (2003); Slack v. McDaniel, 529
U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 84 (4th Cir. 2001). The Court concludes
that the governing standard is not satisfied in this instance. Accordingly, the Court DENIES a
certificate of appealability.
The Court DIRECTS the Clerk to send a copy of this Order to counsel and the
defendant, the Unites States Attorney’s Office, the United States Probation Office, and the United
States Marshals Service.
ENTER:
June 3, 2014
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