Opinion
No. 3-95-CR-0141-D, No. 3-00-CV-0842-D
September 27, 2002
FINDINGS AND RECOMMENDATION OF TILE UNITED STATES MAGISTRATE JUDGE
Defendant Mark Linnear Hays, appearing pro se, has filed a pleading entitled "Motion for Leave to be Heard on a Showing of Special Circumstances to Alter or Amend Judgment in Magistrate's Report and Recommendation." The motion has been referred to U.S. Magistrate Judge Jeff Kaplan for recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B) and an order of reference dated September 24, 2002.
I.
Defendant was convicted by a jury of: (1) conspiracy; (2) obstructing commerce by robbery; (3) using and carrying a firearm during a crime of violence; and (4) possession of a firearm by a convicted felon. Punishment was assessed at life imprisonment. His conviction and sentence were affirmed on direct appeal. United States v. Hays, No. 96-11326 (5th Cir. Apr. 16, 1999), cert. denied, 122 S.Ct. 1217 (2000).
On April 21, 2000, movant filed a motion for post-conviction relief under 28 U.S.C. § 2255. He argued that: (1) the Hobbs Act is unconstitutional; (2) the indictment was defective; (3) evidence seized from his hotel room and truck should have been suppressed; (4) identification evidence was tainted by an impermissibly suggestive photographic array; (5) the government knowingly presented perjured testimony; (6) his sentence was illegally enhanced; and (7) he received ineffective assistance of counsel. After conducting a preliminary review of the motion and the prior proceedings, the magistrate judge recommended that relief be summarily denied. United States v. Hays, No. 3-00-CV-0842-D (N.D. Tex. May 1, 2000). Defendant timely filed written objections to this recommendation. He also filed three motions for leave to amend his original section 2255 motion to assert additional claims. On July 27, 2000, the magistrate judge allowed defendant to supplement his motion, but recommended that relief be denied as to the new claims. Defendant's second and third motion for leave to amend were denied as futile. United States v. Hays, No. 3-00-CV-0842-D (N.D. Tex. Jul. 27, 2000). The district judge adopted the magistrate judge's recommendations and denied post-conviction relief on September 21, 2000.
Rule 4 of the Rules Governing Section 2255 Proceedings provides, in relevant part:
The motion, together with all files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be so notified . . .
RULES GOVERNING SECTION 2255 PROCEEDINGS, Rule 4(b).
Defendant appealed this decision to the Fifth Circuit. While the appeal was pending, defendant filed a motion for reconsideration, a motion for relief from judgment, and a motion for new trial. All three motions were denied on October 20, 2000. Thereafter, the court of appeals denied a certificate of appealability with respect to defendant's section 2255 motion. United States v. Hays, No. 00-11146 (5th Cir. Apr. 11, 2001).
Undeterred, defendant now seeks to amend or alter the judgment in this case based on the Fifth Circuit's decision in United States v. McFarland, 264 F.3d 556 (5th Cir. 2001). According to defendant, McFarland provides additional authority for his claim that the Hobbs Act is unconstitutional.
A pro se motion for relief from judgment under Rule 60(b) may be construed as a motion for post-conviction relief under 28 U.S.C. § 2255. See United States v. Rich, 141 F.3d 550, 552 (5th Cir. 1998). However, since defendant has already filed a section 2255 motion, he cannot file a second or successive motion with prior approval from a three-judge panel of the court of appeals. See 28 U.S.C. § 2255 2244(b)(1)-(3).
II.
A district court may grant relief from a final judgment "[o]n motion and upon such terms as are just . . ." FED. R. Civ. P. 60(b). These terms include newly discovered evidence, a void judgment, or a judgment that has been reversed or otherwise vacated. FED. R. Civ. P. 60(b)(2), (4) (5). The court may also set aside a judgment for "any other reason justifying relief from the operation of the judgment." FED. R. Civ. P. 60(b)(6). However, relief under this catch-all provision is available "only if extraordinary circumstances are present." Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2001), quoting Bailey v. Ryan Stevedoring Co., Inc., 894 F.2d 157, 159 (5th Cir.), cert. denied, 111 S.Ct. 89 (1990).Defendant maintains that McFarland provides the "special circumstances" necessary to amend the judgment denying section 2255 relief. Like the defendant in this case, the defendant in McFarland was prosecuted in federal court under the Hobbs Act for robbing various retail stores. He argued that application of the federal statute to these local robberies for the purpose of maximizing his sentence was unconstitutional under Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). A panel of the Fifth Circuit rejected this argument, relying on its prior decisions in United States v. Hickman, 151 F.3d 446 (5th Cir. 1998) and United States v. Robinson, 119 F.3d 1205 (5th Cir. 1997). While acknowledging that a majority of the active judges voted to reconsider Hickman en banc, the McFarland court noted that this reconsideration resulted in a tie vote among the judges. As a result, the panel decisions in Hickman and Robinson were left as binding precedent in the circuit. Thus, the McFarland panel affirmed defendant's conviction under the Hobbs Act. McFarland, 264 F.3d at 559. One judge specially concurred. In a separate opinion. Judge DeMoss wrote:
I write separately to advise the parties and the rest of the Court that, in due course after issuance of this opinion, I will timely hold the mandate and call for a ballot for en banc reconsideration. I will take this action for the following reasons:
I think it is unhealthy to have a Circuit precedent hanging by the slender thread of an en banc tie vote; as a matter of Court policy we should work to reach a definitive conclusion, one way or the other, on that Circuit precedent as soon as possible.Id.
The Fifth Circuit has since voted to rehear McFarland en banc. United States v. McFarland, 281 F.3d 506 (5th Cir. 2002). The case was scheduled for oral argument during the week of May 20, 2002 and is currently pending before the court.
Seizing on this language, defendant argues that he should be allowed to reurge his constitutional challenge to the Hobbs Act to permit further appellate consideration of this ground for relief. The court disagrees. First, McFarland does not provide additional support for defendant's claim. To the contrary, the panel decision adheres to existing circuit precedent upholding the constitutionality of the Hobbs Act. Second, even if McFarland had announced a new rule, changes in decisional law do not constitute "extraordinary circumstances" for granting Rule 60(b) relief. Hess, 281 F.3d at 216.
Defendant has failed to establish any basis for vacating the judgment denying his section 2255 motion. Accordingly, he is not entitled to relief under Rule 60(b).
RECOMMENDATION
Defendant's motion to alter or amend judgment should be denied.