Carter v. United States

          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, ...