Opinion
CR 15-41-GF-BMM
11-16-2016
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. JESSE WADE NEWSOM, Defendant/Movant.
ORDER RECHARACTERIZING AND DISMISSING MOTION AND DENYING CERTIFICATE OF APPEALABILITY
On October 6, 2016, the Court denied Defendant/Movant Jesse Wade Newsom's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. On October 10, 2016, Newsom submitted an additional claim for relief. See Mot. to Correct Sentence (Doc. 45) at 1 (date at signature line). On October 20, 2016, that claim was dismissed as an unauthorized second or successive motion under 28 U.S.C. § 2255.
On November 7, 2016, Newsom submitted yet another claim for relief, a "Motion to Void Judgement Pursuant to Rule 60(b)(6)." Rule 60(b)(6) is a rule of civil procedure. See Fed. R. Civ. P. 60(b)(6); see also Fed. R. Civ. P. 1. It could operate against the judgment denying Newsom's § 2255 motion, because a § 2255 motion is a civil proceeding. See, e.g., Gonzalez v. Crosby, 545 U.S. 524, 534 (2005). A Rule 60(b) motion cannot operate against the criminal judgment, that is, the conviction or the sentence.
Even as to the civil matter, however, Newsom's motion is misdirected. Presenting a new claim for relief is not a legitimate use of a Rule 60(b) motion in a habeas proceeding. Newsom's Rule 60(b) motion is in reality an unauthorized second or successive motion under 28 U.S.C. § 2255 and must be recharacterized as such. It is therefore dismissed. As Newsom has already been advised, see Order (Doc. 46) at 1, his recourse at this point lies in appealing the denial of his § 2255 motion, or applying to the court of appeals for leave to file a second or successive motion under § 2255, or both. See Gonzalez, 545 U.S. at 530-32; United States v. Washington, 653 F.3d 1057, 1059-60 (9th Cir. 2011); see also Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam); 28 U.S.C. §§ 2255(h), 2244(b)(3)(A).
A certificate of appealability is not warranted. Newsom's new claim does not make a substantial showing that he was deprived of a constitutional right. 28 U.S.C. § 2253(c)(2). Although he claims the Court lacked subject-matter jurisdiction, see Mot. to Void at 1, it did not, see 18 U.S.C. § 3231. In addition, when Newsom pled guilty, he admitted he had been convicted of a felony in the State of Washington. See, e.g., Plea Agreement (Doc. 19) at 3 ¶ 4; Offer of Proof (Doc. 21) at 6 ¶ 12.
Accordingly, IT IS HEREBY ORDERED that Newsom's "motion to void judgment" (Doc. 47) is DISMISSED as an unauthorized second or successive motion under 28 U.S.C. § 2255. A certificate of appealability is also DENIED.
DATED this 16th day of November, 2016.
/s/_________
Brian Morris
United States District Court Judge