MARK W. BENNETT, District Judge.
This case, originally assigned to Judge O'Brien, is before me on a Rule 60(b) motion to reconsider.
On August 25, 2011, Mekdara was indicted on several counts related to the distribution of methamphetamine. Mekdara pleaded guilty to three counts and Judge O'Brien sentenced him to 199 months incarceration. (Crim. docket no. 73). On May 7, 2015, Judge O'Brien granted Mekdara an eleven month sentence reduction based on the "All Drugs Minus Two" sentencing guidelines change. (Crim. docket no. 94). Mekdara filed a pro se appeal to the Eighth Circuit Court of Appeals, believing he merited a greater sentence reduction. On June 1, 2015, the Eighth Circuit Court of Appeals summarily affirmed Judge O'Brien's ruling. (Crim. docket no. 101.). Mandate issued on June 24, 2015.
On June 26, 2015, Mekdara filed his 28 U.S.C. § 2255 Motion. On July 29, 2015, Judge O'Brien entered an initial review order denying Mekdara's claim. (Civ. docket no. 2). Judge O'Brien concluded that Mekdara's habeas claim was time barred. Judge O'Brien also noted that, "post-judgment relief related to changes in the sentencing guidelines—including the `All Drugs Minus Two' change—is limited by 18 U.S.C. § 3582(c)(2) and U.S.S.G. 1B1.10. Those statutes provide the exclusive means of changing a sentence based a guidelines change. Mr. Mekdara cannot renumber his argument as a 28 U.S.C. § 2255 merely because he is dissatisfied with the Court's prior Order under 18 U.S.C. § 3582(c)(2)." (Civ. docket no. 2, p. 4).
Following Judge O'Brien's initial review order, Mekdara filed a 28 U.S.C. § 2241 petition in the U.S. District Court for Minnesota. See Mekdara v. Wilson, No. 15-CV-3632 (JNE/JJK) (D. Minn filed Sep. 10, 2015). In the § 2241 petition, Mekdara raised the same arguments he asserted in his pro se § 2255 petition. He specifically argued that Judge O'Brien's application of the "All Drugs Minus Two" sentencing reduction violated the ex post facto clause as applied to his case. Judge Ericksen, adopting a Report and Recommendation authored by U.S. Magistrate Judge Jeffrey Keyes, found that § 2241 could not provide Mekdara the relief he sought and dismissed Mekdara's claim for lack of jurisdiction. Additionally, the Minnesota Court considered the merits of Mekdara's claim and found that, "[r]egardless of whether the Sentencing Guidelines permitted the sentencing court to impose a more lenient punishment than the sentencing court believed, the sentence actually imposed on Mekdara was not illegal. After all, the sentencing court need not have modified Mekdara's sentence at all. See 18 U.S.C. § 3582(c)(2) ("the court may reduce the term of imprisonment. ..." Mekdara v. Wilson, No. 15-CV-3632 (JNE/JJK), 2015 WL 6445371, at *3 (D. Minn. 2015).
On October 26, 2015, Mekdara filed the present Rule 60(b) motion to reconsider. In his motion, Mekdara argues that Judge O'Brien erred by finding Mekdara's claim was time barred. Mekdara bases his motion to reconsider on a comment from Magistrate Keyes's Report and Recommendation which suggested Mekdara would be better off challenging Judge O'Brien's statute of limitations ruling than filing a § 2241 petition.
Federal Rule of Procedure 60(b) states that:
Rule 60(b) applies to 28 U.S.C. § 2255 proceedings to the extent it is not inconsistent with the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Ward v. Norris, 577 F.3d 925, 932 (8th Cir. 2009); see also 28 U.S.C. § 2255; FED. R. CIV. P. 81(a)(4). Inconsistencies between Rule 60(b) and 28 U.S.C. § 2255 may arise because it is long established that a second successive § 2255 motion requires certification by a court of appeals before filing. See 28 U.S.C. § 2244(b)(3)(A). "[I]nmates may not bypass the authorization requirement of 28 U.S.C. § 2244(b)(3) for filing a second or successive § 2254 or § 2255 action by purporting to invoke some other procedure." United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005); see also United States v. Patton, 309 F.3d 1093, 1094 (8th Cir. 2002) (per curiam) (also explaining that inmates may not bypass authorization requirement of § 2255 by purporting to invoke some other procedure); Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (per curiam) (explaining that, if a Rule 60(b) motion is actually a successive habeas petition, the district court should deny it for failure to obtain authorization from the court of appeals, or, in its discretion, transfer the motion to the court of appeals).
Rule 60(b) creates an exception to the finality of a district court's judgment in a habeas proceeding. See Ward, 577 F.3d at 933. District courts, when presented with a purported Rule 60(b) motion following the dismissal of a petitioner's habeas claim, should conduct a brief initial inquiry to determine whether the allegations in the Rule 60(b) motion, in fact, amount to a second or successive collateral attack under 28 U.S.C. § 2255. See Boyd, 304 F.3d at 814. A Rule 60(b) motion is a second or successive habeas corpus application if it contains a "claim." Ward, 577 F.3d at 933. When no "claim" is presented, there is no basis for contending that the Rule 60(b) motion should be treated like a habeas corpus application. Gonzalez v. Crosby, 545 U.S. 524, 533 (2005). As the Eighth Circuit Court of Appeals has explained,
Ward, 577 F.3d at 933. On the other hand, the court has explained,
Ward, 577 F.3d at 933.
The Government filed a resistance to Mekdara's Rule 60(b) motion. (docket no. 5) The Government argues that I should not consider Mekdara's motion because it is, essentially, a second successive § 2255 petition. However, it is clear that Mekdara's claim is properly brought as a Rule 60(b) motion. As the Eighth Circuit Court of Appeals stated in the above quoted opinion, a Rule 60(b) motion is proper in a § 2255 case when the motion does not raise a new claim, but rather asserts an error in the previous ruling. In this case, Mekdara argues Judge O'Brien erred by finding that his claim was time barred. Accordingly, after conducting a `brief initial inquiry' I find that I may consider the merits of the alleged error.
Mekdara's claim is that Judge O'Brien improperly concluded that the § 2255 habeas petition was time barred. Mekdara's support for this claim is the comment made by Magistrate Keyes in Minnesota, discussed above. Mekdara argues that Judge O'Brien's conclusion was incorrect, because Mekdara's claim is based on newly discovered facts, specifically, Judge O'Brien's "All Drugs Minus Two" order in Mekdara's criminal case.
Judge O'Brien's timeliness analysis was straightforward. As he set out in the order dismissing Mekdara's case:
(Civ. docket no. 2, p. 3-4). Judge O'Brien is correct. There is no dispute that Mekdara's petition is beyond the one year statute of limitations. The only question is whether the alleged new fact—the "All Drugs Minus Two" sentence reduction order—reset the one year statute of limitations. It is undisputed that Judge O'Brien chose to modify Mekdara's sentence pursuant to 18 U.S.C. § 3582(c)(2) and grant Mr. Mekdara a sentence reduction of eleven months. It is also clear that if that order constituted a new fact, Mekdara's § 2255 motion would be timely filed.
As was set out in Judge O'Brien's order granting Mekdara a sentence reduction, the "All Drugs Minus Two" change to the United States Sentencing Guidelines (USSG) allowed Judge O'Brien to reduce Mekdara's sentence pursuant to 18 U.S.C. § 3582(c)(2). 18 U.S.C. § 3582(c) states that:
Many, if not most, sentence reductions granted based on that guidelines change have been considered during the current calendar year.
This argument is most commonly made in the context of a Rule 35(b) motion. Under Rule 35(b) and 18 U.S.C. § 3582, a judge may reduce a defendant's sentence, after a judgment is entered, if the defendant provides assistance to the prosecution. In some of those cases, defendants who did, or did not, receive a reduction pursuant to Rule 35(b) argued that the court's ruling on the Rule 35(b) motion restarted the one year statute of limitations contained in 28 U.S.C. § 2255. However, courts have held that the decision to grant (or deny) the prosecution's motion under Rule 35(b) of the Federal Rules of Criminal Procedure had no effect on the one year period of limitation applicable to 28 U.S.C. § 2255 motions. See Byers v. United States, 561 F.3d 832, 835 (8th Cir. 2009) ("Despite Byers' argument that his pro se motion was timely filed because it was filed within one year of his sentence modification under Rule 35(b), both parties are now in agreement, and this Court so holds, that the motion was not timely filed because the modification was not a "judgment of conviction."); see also O'Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998) ("[P]ost-judgment motions (such as those under Rules 32, 33 and 35) do not suspend the [one year period of limitation contained in 28 U.S.C. § 2255]"); Mayo v. United States, No. C06-2075 LRR, 2006 WL 3191558, at *3 (N.D. Iowa 2006) (Chief Judge Reade of this court reaching the same conclusion). The Fourth Circuit Court of Appeals agreed in United States v. Sanders, 247 F.3d 139, 142-43 (4th Cir. 2001), stating:
In coming to that conclusion, courts emphasize both the language in 18 U.S.C. § 3582(b) and Congress's failure to specifically enlarge the limitation period in 28 U.S.C. § 2255. As the Eleventh Circuit Court of Appeals explained in Murphy v. United States, 634 F.3d 1303, 1307-09 (11th Cir. 2011):
Additionally, various courts have come to the same conclusion in the context of the Fair Sentencing Act (FSA) reduction to the crack cocaine guidelines in 2011 applied via 18 U.S.C. § 3582(c). See Morning v. United States, No. 09-CV-252-WDS, 2012 WL 4387851, at *3 (S.D. Ill. 2012) ("[T]his Court finds that petitioner's resentencing pursuant to 28 U.S.C. § 3582(c) did not restart the clock for § 2255 statute of limitation purposes, and petitioner's motion challenging his underlying conviction cannot be considered timely on this basis."); Vassell v. United States, No. 3:12CV23, 2012 WL 1599428, at *3 (N.D.W. Va. 2012) report and recommendation adopted, No. 3:12-CV-23, 2012 WL 1616653 (N.D.W. Va. 2012) (implicitly finding that a reduction based on the crack cocaine sentencing amendment did not alter the time for filing a habeas petition).
Accordingly, it seems clear that a sentence reduction based upon 18 U.S.C. § 3582 does not constitute a new fact or a new judgment for the purposes of restarting the one year statute of limitation contained in 28 U.S.C. § 2255. This includes the "All Drugs Minus Two" reduction that Judge O'Brien granted Mekdara pursuant to 18 U.S.C. § 3582(c)(2). Mekdara has failed to cite any authority which would support his argument and I could find none. Based on the forgoing, Judge O'Brien correctly concluded that Mekdara's claim is time barred.
Mekdara must make a substantial showing of the denial of a constitutional right in order to be granted a certificate of appealability in this case. See Miller-El v. Cockrell, 537 U.S. 322 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000); Mills v. Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). "A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings." Cox, 133 F.3d at 569. Moreover, the United States Supreme Court reiterated in Miller-El v. Cockrell that "`[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). I determine that Mekdara does not present questions of substance for appellate review and, therefore, does not make the requisite showing to satisfy § 2253(c). See 28 U.S.C. § 2253(c)(2); FED. R. APP. P. 22(b). Accordingly, with respect to Mekdara's claim, I do not grant a certificate of appealability pursuant to 28 U.S.C. § 2253(c). Should Mekdara wish to seek further review of his petition, he may request a certificate of appealability from a judge of the United States Court of Appeals for the Eighth Circuit. See Tiedeman v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997).
For the reasons discussed above, Mekdara's motion to reconsider pursuant to Rule 60(b) is
Accordingly, Judge O'Brien correctly stated that, "post-judgment relief related to changes in the sentencing guidelines—including the `All Drugs Minus Two' change—is limited by 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10. Those statutes provide the exclusive means of changing a sentence based a guidelines change. Mr. Mekdara cannot renumber his argument as a 28 U.S.C. § 2255 merely because he is dissatisfied with the Court's prior Order under 18 U.S.C. § 3582(c)(2)." (Civ. docket no. 2, p. 4.).
