Opinion
3:94-CR-042-D(01).
January 6, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of reference filed on October 15, 2004, Movant Derrick Damon Rainwater's motion for relief from a void judgment pursuant to Fed.R.Civ.P. 60(b)(4) and (b)(6), filed on October 14, 2004, has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
On May 6, 2003, the District Court adopted the recommendation of the undersigned magistrate judge and entered judgment dismissing Movant's motion pursuant to 28 U.S.C. § 2255 as barred by the one-year limitation period. Thereafter Movant filed three motions: two motions for reconsideration or to alter or amend judgment, and one motion for an evidentiary hearing. By order filed July 29, 2003, the District Court adopted the magistrate judge's recommendation denying all three motions. On January 27, 2004, the District Court also adopted the recommendation of the magistrate judge and denied Movant's November 25, 2003 motion to dismiss the indictment or, alternatively, for an evidentiary hearing. The Fifth Circuit Court of Appeals thereafter denied the appeals stemming from the July 29, 2003, and January 27, 2004 orders, see Rainwater v. United States, Nos. 03-10886 and 04-10181.
On December 10, 2004, the District Court also denied Movant's motion to preserve a Blakely claim. Movant filed a notice of appeal on December 23, 2004, which has been forwarded to the Fifth Circuit for processing. The appeal number is not yet available.
In the instant motion for relief from a void judgment, Movant seeks relief pursuant to Fed.R.Civ.P. 60(b). Relying on Rule 60(b)(4) and (b)(6) he alleges "the judgment was entered by a court that lacked subject matter jurisdiction," "the district court has acted in a manner inconsistent with due process by not assuring itself of its own jurisdiction and by denying [Movant] the right to be heard." (See Motion for Void Judgment at 1). The primary purpose of the motion is to reassert a challenge the District Court's subject matter jurisdiction to prosecute Movant under the Hobbs Act.
Although Movant relies on Fed.R.Civ.P. 60(b), his motion attacks the validity of his federal conviction and, hence, the legality of the sentence that he is currently serving. This can be done only in a motion under 28 U.S.C. § 2255. The Fifth Circuit Court of Appeals has long held that § 2255 "provides the primary means of collateral attack on a federal sentence." Cox v. Warden, Fed. Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990); see also Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). The Fifth Circuit has also held that "courts may treat motions that federal prisoners purportedly bring under Rule 60(b), but which essentially seek to set aside their convictions on constitutional grounds as § 2255 motions." United States v. Rich, 141 F.3d 550, 551 and 553 (5th Cir. 1998).
Liberally construing Movant's Rule 60(b) motion as a § 2255 motion, the same should be summarily dismissed for want of jurisdiction because Movant has not received prior authorization from the Fifth Circuit to file a successive § 2255 motion. See 28 U.S.C. § 2244(b)(3)(A) (providing that a second or successive motion filed by a person attacking a sentence under § 2255 must be certified by a panel of the appropriate court of appeals before it can be heard in the district court). See also In re Epps, 127 F.3d 364 (5th Cir. 1997); In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996).
Movant concedes that the claims alleged in this motion, were raised in his prior § 2255 motion. See Motion for Relief from Void Judgment at 1. He argues, however, that none of the claims were "adjudicated on the merits" and, thus, should not be "considered `second or successive for purposes of construing or characterizing this Rule 60(b)(4) (6) [motion] as a collateral attack or habeas corpus motion.'" See id. at 2.
Movant's first § 2255 motion was dismissed on the ground that it was barred by the one-year statute of limitations. Such a dismissal has been construed to constitute an adjudications on the merits for purposes of the gate-keeping rules on second or successive petitions. See Villanueva v. United States, 346 F.3d 55, 61 (2nd Cir. 2003) ("the dismissal of a § 2255 petition as untimely under AEDPA presents a `permanent and incurable' bar to federal review of the merits of the claim." As a result, "it constitutes an adjudication of the merits for successive purposes."); Donaldson v. United States, 2003 WL 22959502, No. 01-cv-1061 (N.D.N.Y. Oct. 27, 2003); see also Anders v. Cockrell, 2003 WL 102615 at *2, 3:02cv2513-N (N.D. Tex. Jan. 08, 2003) (addressing the same issue in the context of a state habeas corpus petition). Therefore, the claims which Movant seeks to raise in this action are "second or successive." See In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (a subsequent petition is second or successive when it "raises a claim challenging the Movant's conviction or sentence that was or could have been raised in an earlier petition, or otherwise constitutes an abuse of the writ.").
Unless the Fifth Circuit Court of Appeals first grants Movant leave to file the present action, this court lacks jurisdiction to consider the same. Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Therefore, the motion for relief from a void judgment, construed as a § 2255 motion, should be dismissed for want of jurisdiction. Such a dismissal, however, is without prejudice to Movant's right to file a motion for leave to file a second or successive § 2255 motion in the United States Court of Appeals for the Fifth Circuit pursuant to § 2244(b)(3)(A). See In re Epps, 127 F.3d at 364 (setting out the requirements for filing a motion for authorization to file a successive habeas petition in the Fifth Circuit Court of Appeals).
RECOMMENDATION:
For the foregoing reasons the Magistrate Judge recommends that the District Court dismiss the Rule 60(b) motion, construed as a motion to vacate set aside or correct sentence pursuant to 28 U.S.C. § 2255, without prejudice to Movant seeking leave to file a second or successive § 2255 motion from the United States Court of Appeals for the Fifth Circuit.
The District Court should order the Clerk to open for statistical purposes, a new civil action (nature of suit 510, motion to vacate, set aside, or correct sentence) and to CLOSE the same on the basis of the District Court's order adopting this recommendation.
The Clerk will transmit a copy of this recommendation to Movant Derrick Damon Rainwater, BOP No 25805-077, FCI El Reno, PO Box 1500, El Reno, OK 73036.