Opinion
No. CV 11-0862 WJ/GBW No. CR 09-2060 WJ
09-19-2012
UNITED STATES OF AMERICA, Plaintiff, v. TERRY HARRIS SLADE, Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant's Motion for Relief from § 2255 Judgment (CV Doc. 8; CR Doc. 51) (the "motion to reconsider"). By order and judgment entered on December 8, 2011, the Court dismissed Defendant's § 2255 motion as untimely filed. In his motion to reconsider, Defendant asks the Court to set aside the dismissal order and allow him to proceed on his § 2255 motion. The Court will dismiss the motion for lack of jurisdiction.
Because Defendant's § 2255 motion was dismissed for untimeliness, he asserts that his motion to reconsider "challenges nothing more than a procedural aspect of the §2255 proceeding." Therefore, he argues, "[b]y any standard, this [motion to reconsider] is a bona fide Rule 60(b) motion" and not a restricted second or successive petition. To the contrary, when a court dismisses a § 2255 motion as untimely, the dismissal is with prejudice, and subsequent motions are treated as second or successive. See, e.g., Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003), cited in Brown v. Roberts, 177 F. App'x 774, 778 (10th Cir. 2006) (§ 2254 proceeding). In other words, Defendant's rule 60(b) motion challenges the merits, and not a procedural defect, of the Court's earlier ruling. Cf. In re Lindsey, 582 F.3d 1173, 1175 (10th Cir. 2009) (per curiam) ("While the decision whether or not to hold an evidentiary hearing may be classified as a procedural ruling, the district court's decision not to hold an evidentiary hearing did not preclude a merits determination on [Defendant]'s § 2255 motion; it was the result of a merits determination."). Even though the Court dismissed Defendant's § 2255 motion on procedural and not substantive grounds, his rule 60(b) motion does not challenge a procedural defect in the proceeding.
Furthermore, because Defendant previously filed a § 2255 motion, the Court will not recharacterize his rule 60(b) motion as a § 2255 motion. A district court does not abuse its discretion in declining to recast a pleading as a § 2255 motion when relief would be "facially 'barred as . . . second or successive under 28 U.S.C. § 2255.' " See United States v. Valadez-Camarena, 402 F.3d 1259, 1261 (10th Cir. 2005); United States v. Duggins, No. 12-2072, 2012 WL 4017257, at *1 (10th Cir. Sept. 13, 2012) (affirming district court's refusal to recharacterize pleading as § 2255 motion). And because Defendant's rule 60(b) motion will not be recharacterized, the Court has no jurisdiction to consider the motion. See United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006) ("[I]f the prisoner's pleading must be treated as a second or successive § 2255 motion, the district court does not even have jurisdiction to deny the relief sought in the pleading.").
Defendant correctly asserts that the Court should not sua sponte dismiss a § 2255 motion as time barred without giving the defendant notice and an opportunity to respond. See Hare v. Ray, No. 00-6143, 2000 WL 1335428, at **1 (10th Cir. Sept. 15, 2000) (noting that timeliness of § 2254 petition was raised sua sponte and allowing response); Hines v. United States, 971 F.2d 506, 507-09 (10th Cir. 1992) (same for procedural default in § 2255 proceeding). Here, however, Defendant raised and briefed the issue of timeliness and equitable tolling in his Request for Leave to File a Tardy 28 U.S.C. § 2255 Motion (CV Doc. 3; CR Doc. 43) that was filed with his § 2255 motion. The Court considered Defendant's thoughtful arguments in favor of equitable tolling of the one-year limitation period, and he was clearly not prejudiced by not being allowed a second opportunity to brief the issue. The Court will dismiss Defendant's motion to reconsider.
IT IS THEREFORE ORDERED that Defendant's Motion for Relief from § 2255 Judgment (CV Doc. 8; CR Doc. 51) is DISMISSED for lack of jurisdiction.
______________
UNITED STATES DISTRICT JUDGE