United States District Court, D. Maine
RECOMMENDED DECISION ON RULE 60(b) MOTION
JOHN
C. NIVISON U.S. MAGISTRATE JUDGE
In this
action, Petitioner Robert Kelly Carter has filed a motion
pursuant to Fed.R.Civ.P. 60(b). (Motion, ECF No. 96.) In the
motion, Petitioner seeks relief from final judgment on his
motion for relief under 28 U.S.C. § 2255. (Id.
at 1; Orders, ECF Nos. 87, 94.) Petitioner alleges habeas
counsel failed to comply with Petitioner's request to
file a notice of appeal from the section 2255 judgment; he
asks the Court to re-enter the section 2255 judgment so that
he can pursue an appeal. (Motion, ECF No. 96 at 1-2.)
Following
a review of Petitioner's Rule 60(b) motion, the
Government's response, and the record, I recommend the
Court dismiss the motion as an unauthorized second or
successive motion under 28 U.S.C. §§ 2244, 2255(h).
I.
Factual Background and Procedural History
In
2014, following a guilty plea, Petitioner was convicted of
possession of firearms by a convicted felon; the Court
sentenced Petitioner to 120 months in prison, followed by
three years of supervised release. (Judgment, ECF No. 42 at
1-3.) Petitioner did not appeal from the
judgment.[1]
In
Petitioner's section 2255 motion, he alleged ineffective
assistance of trial counsel based on several
grounds.[2] (Motion, ECF No. 57 at 4-8.) Petitioner
filed the section 2255 motion pro se in May 2015; in March
2016, Petitioner's retained counsel was admitted pro
hac vice. (Motion at 12; Certification, ECF No. 76.)
The
Court addressed Petitioner's section 2255 claims in two
orders (Orders, ECF Nos. 87, 94.) In March 2017, the Court
denied all claims except the claim concerning the notice of
appeal, and it denied a certificate of appealability as to
the claims the Court denied. (Recommended Decision, ECF No.
80; Order, ECF No. 87.)[3] The Court allowed Petitioner an
additional 45 days to “to submit admissible evidence
that the Petitioner believes corroborates his communications
with his counsel regarding the notice of appeal.”
(Order, ECF No. 87 at 2.)
In July
2017, the Court noted it had provided Petitioner the
extensions of time Petitioner requested, and it accepted
Petitioner's late filing; the Court concluded Petitioner
had provided “no additional evidence to corroborate his
claim that he asked his counsel to file a notice of
appeal.” (Order, ECF No. 94 at 1-2.) The Court denied
the claim, and it denied a certificate of appealability.
(Id. at 2-3.)
Petitioner
filed his Rule 60(b) motion in November 2018. (Motion, ECF
No. 96.) In the motion, Petitioner alleges counsel caused
Petitioner to fail to appeal from the denial of his section
2255 motion, because counsel abandoned him; Petitioner asks
the Court to re-enter the section 2255 judgment so that
Petitioner can pursue an appeal. (Id. at 2.)
The
Government argues Petitioner's motion is in substance an
unauthorized second or successive petition subject to the
gatekeeping provisions of 28 U.S.C. §§ 2244,
2255(h). (Response, ECF No. 97 at 3-5.) The Government also
argues that if Petitioner's motion is construed as a Rule
60(b) motion, it is untimely, and the facts do not support
relief under Rule 60(b). (Id. at 6-10.)
II.
Discussion
Under
the Supreme Court's analysis in Gonzalez v.
Crosby, 545 U.S. 524 (2005), Petitioner's motion is
not, in substance, a Rule 60(b) motion.[4] Rather, it is a
second or successive section 2255 petition, and therefore it
is subject to the gatekeeping provisions of sections 2244 and
2255(h).
In
Gonzalez, the Court reasoned that the Federal Rules
of Civil Procedure apply to habeas proceedings “to the
extent that they are not inconsistent with any statutory
provisions” or the rules that govern habeas
proceedings. 545 U.S. at 529 (applying former Rule 11 (now
Rule 12) of the Rules Governing Section 2254
cases).[5] Because “§ 2244(b) applies only
where the court acts pursuant to a prisoner's
‘application' for a writ of habeas corpus, ”
the court “must decide whether a Rule 60(b) motion
filed by a habeas petitioner is a ‘habeas corpus
application' as the statute uses that term.”
Id. at 530 (quotation marks omitted). The Court
noted that, “for purposes of § 2244(b) an
‘application' for habeas relief is a filing that
contains one or more ‘claims.'” 545 U.S. at
530.
In most cases, determining whether a Rule 60(b) motion
advances one or more “claims” will be
relatively simple. A motion that seeks to add a new ground
for relief . . . will of course qualify. A motion can also
be said to bring a “claim” if it attacks the
federal court's previous resolution of a claim on
the merits, since alleging that the court erred in
denying habeas relief on the merits is effectively
indistinguishable from alleging that the movant is, under
the substantive provisions of the statutes, entitled to
habeas relief. That is not the case, however, when a Rule
60(b) motion attacks, ...