OPINION
ANNE E. THOMPSON, District Judge.
I. INTRODUCTION
Before the Court is Sebastian Williams' ("Petitioner") Motion pursuant to Federal Rule of Civil Procedure 60(b)(6) to correct his criminal history scoring. Motion, Docket Entry 21. For the reasons stated below, the motion is denied as it is in reality an attempt to bring a second or successive motion under 28 U.S.C. § 2255.
II. BACKGROUND
The Court recites the procedural history of this matter as set forth in Chief Judge Garrett Brown's opinion denying Petitioner's 2255 motion:
This matter began with a pair of armored truck robberies in Jersey City, New Jersey, on March 23, 2002, and August 29, 2002. On December 17, 2002, a grand jury indicted Petitioner and Louis Hyman ("Hyman"), charging both with two counts of conspiracy to commit armed robbery in violation of 18 U.S.C. § 1951 (Counts One and Three), and one count of carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924 (c) (1) (A) (ii) (Count Two). On January 28, 2003, a grand jury returned a Superseding Indictment charging the same three counts against both defendants, and also charging Hyman with an additional count of carrying a firearm in relation to a crime of violence. Petitioner pled not guilty to all three counts charged against him, and was subsequently convicted after trial by jury on March 24, 2003.
On August 11, 2003, the Court sentenced Petitioner. The Guideline analysis was as follows: (1) for Count One, the March 23, 2002 robbery, Petitioner received an adjusted offense level of twenty six; (2) for Count Two, carrying a firearm in relation to the March, 23, 2002 robbery, Petitioner received the mandatory minimum sentence required by statute; and (3) for Count Three, the August 29, 2002 robbery, Petitioner received an adjusted offense level of twenty nine, which included a five level enhancement based on a firearm discharge during the commission of the crime. The Court calculated a combined adjusted offense level of thirty one for Counts One and Three, based on the greater adjusted offense level of twenty nine, and an increase in offense level of two.
Thereafter, [the] Court sentenced Petitioner to 140 months each for Counts One and Three, to be served concurrently, and 84 months under Count Two to be served consecutively, for a total of 224 months imprisonment.
Williams v. United States, No. 08-1429, 2010 WL 2682137, at *1 (D.N.J. July 2, 2010) (internal citations omitted). The Third Circuit affirmed the convictions but remanded for resentencing in accordance with United States v. Booker, 523 U.S. 220 (2005). The sentencing court imposed the same sentence after the remand, and the Third Circuit affirmed on appeal. Ibid.
Petitioner thereafter filed a § 2255 motion on March 20, 2008 raising various challenges to trial counsel's performance, the indictment, the trial court's jury instructions, and length of his sentence. Chief Judge Brown denied the motion on July 2, 2010, Williams, No. 08-1429, 2010 WL 2682137, and later denied Petitioner's motion for reconsideration, Williams v. United States, No. 08-1429, 2010 WL 3155180 (D.N.J. Aug. 9, 2010).
Petitioner next filed a petition pursuant to 28 U.S.0 § 2241 challenging an alleged defect in his indictment after the Third Circuit denied him permission to file a second or successive § 2255 motion. See Williams v. United States, No. 12-2710, 2012 WL 5880362 (D.N.J. Nov. 20, 2012). The Honorable Peter G. Sheridan, D.N.J., dismissed the petition for lack of jurisdiction. Ibid.
Petitioner thereafter filed this petition on January 4, 2016, and the matter was reassigned to the undersigned. Petitioner argues he is entitled to relief under Federal Rule of Civil Procedure 60(b)(6) as the indictment did not charge him with all of the required elements and the sentencing court miscalculated his criminal history points.
III. STANDARD OF REVIEW
Rule 60(b)(6) permits a court to relieve a party from a final judgment for any reason that justifies relief. "The standard for granting a Rule 60(b)(6) motion is a high one. The movant must show `extraordinary circumstances' to justify reopening a final judgment." Michael v. Wetzel, 570 F. App'x 176, 180 (3d Cir. 2014) (quoting Gonzalez v. Crosby, 545 U.S. 524, 536 (2005)). "[E]xtraordinary circumstances involves a showing that without relief from the judgment, `an "extreme" and "unexpected" hardship will result.'" Budget Blinds, Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008) (quoting Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977)).
IV. ANALYSIS
A Rule 60(b) motion that seeks to collaterally attack the underlying conviction should be treated as a successive habeas petition. Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). Here, Petitioner alleges essential elements were not charged in the indictment and that the sentencing court miscalculated his criminal history under the guidelines because "appellant has not received any prior sentence of one year or more." Motion at 2-4. (emphasis in original). These are attacks on the underlying conviction and sentence, not claims of "defect[s] in the integrity of the federal habeas proceedings" that are appropriately raised in a Rule 60(b) motion. See Gonzalez, 545 U.S. at 532. Petitioner is "seeking, in effect, a second chance to have the merits of his claims determined favorably." Michael, 570 F. App'x at 179-80. As such, the Rule 60(b) motion is really a disguised second or successive § 2255 motion.
Before this Court may consider a second or successive § 2255 motion, Petitioner must obtain an order of authorization from the Third Circuit. 28 U.S.C. § 2255(h); 28 U.S.C. § 2255 Rule 9. As Petitioner has not obtained such an order, this Court must either dismiss the motion or transfer it to the Third Circuit. See United States v. Hawkins, 614 F. App'x 580, 582 (3d Cir. 2015).
Section 2255(h) permits the certification of a second or successive motion only where the claim is based on newly discovered evidence that, if proven, would be "sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense" or is based on "a new rule of constitutional rule, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." The Court finds that it is not in the interests of justice to transfer the motion to the Third Circuit as it does not appear Petitioner can satisfy the requirements of § 2255(h) because his claims are not based on a new Supreme Court decision made retroactive to cases on collateral review or newly discovered evidence.1
To the extent a certificate of appealability is required, the Court declines to issue one. The United States Supreme Court held in Slack v. McDaniel that "[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." 529 U.S. 473, 484 (2000). This Court denies a certificate of appealability because jurists of reason would not find it debatable that dismissal of the motion as second or successive is correct.
V. CONCLUSION
For the reasons stated above, this Court will deny the Rule 60(b) motion because it is really a second or successive § 2255 motion over which the Court lacks jurisdiction. A certificate of appealability shall not issue. An accompanying Order will be entered.
