Opinion
Crim. No. 2:95-cr-066(2).
January 27, 2006
OPINION AND ORDER
On September 6, 1995, petitioner and co-defendants were convicted after a jury trial on multiple offenses related to numerous armed robberies. Doc. No. 74. Petitioner was sentenced to an aggregate term of 1430 months. Doc. No. 137. On September 11, 1997, his convictions and sentence were affirmed by the United States Court of Appeals for the Sixth Circuit. See United States v. Brown, 124 F.3d 200, unpublished, 1997 WL 570348 (6th Cir. September 11, 1997). On March 18, 1999, the United States Supreme Court denied petitioner's petition for a writ of certiorari. Doc. No. 172.
On February 16, 1999, petitioner filed his first motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, Doc. No. 180, which motion was denied on May 19, 2000. Doc. Nos. 228, 229. On November 27, 2002, petitioner filed a second motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Doc. No. 263. Such motion was transferred to the United States Court of Appeals for the Sixth Circuit as a successive petition. Doc. No. 270. On July 28, 2004, petitioner filed an application for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). Doc. No. 275. Although petitioner does not indicate the specific judgment of which he now seeks reconsideration, in his motion he asserts that his sentence violates the United States Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005).
Federal Rule of Civil Procedure 60(b) provides in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
A motion filed pursuant to 28 U.S.C. § 2255 is considered a "further step in the movant's criminal case rather than a separate civil action." See Advisory Committee Notes, Rule 1 of the Rules Governing Section 2255 Proceedings. However, under Rule 12 of the Rules Governing Section 2255 Proceedings,
The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.Id.; see also Federal Rule of Civil Procedure 81(a)(2):
These rules are applicable to proceedings for admission to citizenship, habeas corpus, and quo warranto, to the extent that the practice in such proceedings is not set forth in statutes of the United States, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Proceedings, and has heretofore conformed to the practice in civil actions.
Other courts consider motions filed under Federal Rule of Civil Procedure 60(b) in the context of § 2255 proceedings. See United States v. Fiorelli, 337 F.3d 282, 285 (3rd Cir. 2003); Gonzalez v. Secretary for the Department of Corrections, 366 F.3d 1253, 1262 (11th Cir. 2004); United States v. Winestock, 340 F.3d 200, 206-07 (4th Cir. 2003); Harris v. United States, 367 F.3d 74, 79 (2nd Cir. 2004); United States v. Giles, 238 F.3d 425, unpublished, 2000 WL 1720730 (6th Cir. November 8, 2000).
However,
Rule 60(b) does not permit parties to relitigate the merits of claims, or to raise new claims that could have been raised during the litigation of the case or in the initial habeas petition. Rather, the purpose of a Rule 60(b) motion is to allow a district court to reconsider its judgment when that judgment rests on a defective foundation. The "factual predicate [of a Rule 60(b) motion] deals with some irregularity or procedural defect in the procurement of the judgment denying habeas relief." Rodwell, 324 F.3d at 70.
A second or successive habeas petition "is a different species." Gonzalez, 366 F.3d at 1292 (Tjoflat, J., concurring in part and dissenting in part). Like an initial habeas petition, a second or successive habeas petition seeks to invalidate the state court's judgment of conviction based on a constitutional error. Pursuant to AEDPA, a "second or successive" habeas petition is meant to address two specific types of constitutional claims by prisoners: (1) claims based on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court" and that was "previously unavailable;" and (2) claims that rely on a rule of constitutional law and that are based on evidence that "could not have been discovered previously through the exercise of due diligence" and that would establish the petitioner's factual innocence. 28 U.S.C. § 2244(b)(2). In this way, second or successive habeas petitions are based entirely on "the alleged violations of federal rights" that occur during the criminal trial. Rodriguez, 252 F.3d at 199; see also Abdur'Rahman, 537 U.S. at 95-96, 123 S.Ct. 594 ("[L]ike all habeas corpus petitions, [a second or successive habeas petition] is meant to remedy constitutional violations . . . while a Rule 60(b) motion is designed to cure procedural violations in an earlier proceeding — here, a habeas corpus proceeding — that raise questions about the proceeding's integrity.") (Stevens, J., dissenting from the dismissal of certiorari as improvidently granted).
* * *
There is another crucial distinction between Rule 60(b) motions and habeas petitions. Granting a second or successive habeas petition invalidates a prisoner's conviction and/or sentence. Granting a Rule 60(b) motion has no such effect. It merely reinstates the previously-dismissed habeas petition, opening the way for further proceedings.In re Abdur'Rahman, 392 F.3d 174, 179-180 (6th Cir. 2004) (citation and quotation omitted). The United States Court of Appeals for the Sixth Circuit thus has held that, where petitioner challenges the "integrity of the district court's opinion," the motion is considered under Rule 60(b); but where petitioner challenges the constitutionality of the judgment against him, the motion is a successive petition. Id., at 181. The determination must be made on a claim by claim basis. Alley v. Bell, 392 F.3d 822, 829 (6th Cir. 2004).
Although In re Abdur'Rahman involved a § 2254 proceeding, in dictum, the Sixth Circuit stated that its "ruling applies with equal force to motions brought in the 28 U.S.C. § 2255 context since AEDPA incorporates by reference in § 2255 the same `second or successive' rules imparted in § 2254." In re Abdur'Rhaman, supra, 392 F.3d at 182.
Petitioner's allegation that his sentence violates Booker and Blakely, although characterized as a motion for reconsideration, raises a claim challenging the constitutionality of his sentence. Such claim either could have been presented in petitioner's first habeas corpus action, or is based on a new rule of constitutional law which, it may be argued, should be retroactively applicable to cases on collateral review, although the United States Court of Appeals for the Sixth Circuit has rejected such argument. United States v. Saikaly, 424 F.3d 514, 517 (6th Cir. 2005); Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir. 2005). The Court therefore concludes that the instant motion is properly construed as a successive petition. 28 U.S.C. § 2244(b)(3)(A) states that before a second or successive petition for writ of habeas corpus can be filed in the district court, the applicant shall move in the appropriate circuit court of appeals for an order authorizing the district court to consider the application.
Because the Court is not re-characterizing petitioner's motion for reconsideration as a first habeas corpus action, there is no need to first provide petitioner an opportunity to withdraw or amend the motion. See Castro v. United States, 540 U.S. 375, 383 (2003) (holding that, "when a court recharacterizes a pro se litigant's motion as a first § 2255 motion. . . . the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has. If the court fails to do so, the motion cannot be considered to have become a § 2255 motion for purposes of applying to later motions the law's "second or successive" restrictions.") See also Martin v. Overton, 391 F.3d 710, 713 (6th Cir. 2004), citing In re Shelton, 295 F.3d 620, 621 (6th Cir. 2002).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court does not have jurisdiction to entertain a successive post-conviction motion or petition for writ of habeas corpus in the absence of an order from the court of appeals authorizing the filing of such successive motion or petition. Nelson v. United States, 115 F.3d 136 (2nd Cir. 1997); Hill v. Hopper, 112 F.3d 1088 (11th Cir.), cert. denied, 520 U.S. 1203 (1997). Unless the court of appeals has given approval for the filing of a second or successive petition, a district court in the Sixth Circuit must transfer the petition to the Sixth Circuit Court of Appeals. In Re Sims, 111 F.3d 45, 47 (6th Cir. 1997) ( per curiam). Under § 2244(b)(3)(A), only a circuit court of appeals has the power to authorize the filing of a successive petition for writ of habeas corpus. Nunez v. United States, 96 F.3d 990 (7th Cir. 1996).
That being the case, this Court is without jurisdiction to entertain a second or successive § 2255 motion unless authorized by the Court of Appeals for the Sixth Circuit. The Sixth Circuit, in turn, will issue this certification only if petitioner succeeds in making a prima facie showing either that the claim sought to be asserted relies on a new rule of constitutional law made retroactive by the United States Supreme Court to cases on collateral review; or that the factual predicate for the claim could not have been discovered previously through the exercise of diligence, and these facts, if proven, would establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty. 28 U.S.C. § 2244(b)(2).
The Sixth Circuit described the proper procedure for addressing a second or successive petition filed in the district court without § 2244(b)(3)(A) authorization in In re Sims, supra:
[W]hen a prisoner has sought § 2244(b)(3)(A) permission from the district court, or when a second or successive petition for habeas corpus relief or § 2255 motion is filed in the district court without § 2244 authorization from this court, the district court shall transfer the document to this court pursuant to 28 U.S.C. § 1631.Id. at 47; see also Liriano v. United States, 95 F.3d 119, 123 (2nd Cir. 1996) ( per curiam).
For the foregoing reasons, this action is TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a successive petition.
IT IS SO ORDERED.