TERRENCE G. BERG, District Judge.
Defendant Ricky Lee Newton is an inmate at the Allenwood Low Federal Correctional Institution in White Deer, Pennsylvania where he is currently serving a term of 360 months for conspiring to possess 1,000 kilograms or more of marijuana with intent to distribute. (Dkt. 224, p. 26; Dkt. 100.) Defendant, appearing pro se, has filed a motion pursuant to Fed. R. Civ. P. 60(b) titled "Motion under Rule 60(b)" (Dkt. 224) that has been fully briefed (Dkt. 225 and Dkt. 226). Defendant is seeking reconsideration of a 2011 district court order dismissing his 2009 motion to vacate his sentence under 28 U.S.C. § 2255. (Dkt. 212.) In addition, Defendant has filed a motion requesting a 60-day extension of time to file a brief in support of his Rule 60(b) motion. (Dkt. 223). Because the Court has received Defendant's "Memorandum of Law in Support" of his Rule 60(b) (Dkt. 224), Defendant's motion for an extension of time to file a brief in support (Dkt. 223) will be denied as moot.
Given that Defendant's Motion under Rule 60(b) (Dkt. 224) advances at least one claim attacking the merits of the district court's denial of his § 2255 motion, the Court will construe Defendant's Rule 60(b) motion as a second or successive petition to vacate his sentence under 28 U.S.C. § 2255. The Court lacks the authority to decide such a motion, however, because the United States Court of Appeals for the Sixth Circuit has not first approved its filing. 28 U.S.C. § 2255; see also Sims v. Terbush, 111 F.3d 45, 47 (6th Cir. 1997) (when a second or successive § 2255 motion is filed without prior authorization from the Court of Appeals, the district court shall transfer it to the Court of Appeals under 28 U.S.C. § 1631). Defendant's pending Rule 60(b) motion (Dkt. 224) will therefore be denied without prejudice for want of jurisdiction and transferred to the Court of Appeals for the Sixth Circuit as a second or successive § 2255 motion.
On September 20, 2002, a jury convicted Defendant of conspiracy to possess with intent to distribute 100 to 1,000 kilograms or more of marijuana in violation of 21 U.S.C. § 846 and § 841(a). (Dkt. 87; Dkt. 100, p. 1.) Defendant was sentenced to a 360-month term of imprisonment on December 19, 2002. (Dkt. 100, pp. 1-2.) On December 27, 2002, Defendant appealed his sentence. (Dkt. 102.) The Court of Appeals for the Sixth Circuit upheld his conviction and sentence on November 19, 2004. United States v. Newton, 389 F.3d 631 (2005).
On October 24, 2005, the United States Supreme Court vacated the judgment and remanded the case "for further consideration in light of United States v. Booker, 543 U.S. 22 (2005)." Newton v. United States, 546 U.S. 803 (2005). The district court re-sentenced Defendant to the same 360-month prison term on June 28, 2007. (Dkt. 190, pp. 1-2.) The Court of Appeals for the Sixth Circuit affirmed the judgment on appeal (Dkt. 198), and the United States Supreme Court denied certiorari on November 17, 2008 (Dkt. 201).
Defendant filed several versions of a motion to vacate his sentence under 28 U.S.C. § 2255 in late November and early December 2009.
Defendant then filed a motion in the Court of Appeals for the Sixth Circuit requesting permission to file a second or successive motion to vacate his sentence under 28 U.S.C. § 2255. (Dkt. 214.) The Court construed this motion as "an application for a certificate of appealability" and denied the application (Dkt. 220, p. 1.) Defendant's action was then dismissed on February 6, 2013 for want of prosecution. (Dkt. 221, p. 2.) A year later, on February 7, 2014, Defendant filed his Motion under Rule 60(b) (Dkt. 224) and his motion requesting an extension of time to file a brief in support of his Rule 60(b) motion (Dkt. 223) that are now before the Court.
Defendant has filed the instant motion pursuant to Fed. R. Civ. P. 60(b) seeking reconsideration of the district court's dismissal of his motion to vacate his sentence under 28 U.S.C. § 2255. (Dkt. 226, p. 3.) Defendant maintains that "he had significant grounds to file" the § 2255 motion "and the district court should have listened to his arguments and decided accordingly." (Id.) In the instant motion filed on February 7, 2014, Defendant appears to make six different claims for relief:
A second or successive § 2255 motion must be transferred to the Court of Appeals for preapproval of its filing. 28 U.S.C. § 1631; see also Sims, 111 F.3d at 47. Accordingly, the Court must first consider whether Defendant's motion is a true Rule 60(b) motion or whether it is really a second or successive § 2255 motion. Pursuant to Fed. R. Civ. P. 60(b), the Court may grant relief from final judgments, orders, or proceedings under certain circumstances including fraud, mistake, and newly discovered evidence. In federal habeas corpus proceedings, however, Rule 60(b) applies only "to the extent that [it is] not inconsistent with" applicable federal statutes. Gonzalez v. Crosby, 545 U.S. 524, 529 (2005).
In Gonzalez v. Crosby, the United States Supreme Court addressed the interplay between Rule 60(b) and the prohibition on second or successive petitions under 28 U.S.C. § 2244. A true Rule 60(b) motion will only challenge "some defect in the integrity of the federal habeas proceeding" or a procedural ruling that "precluded a merits determination" of the habeas application. Id. at 532, 532 n. 4. A Rule 60(b) motion should be treated a second or successive petition when it seeks to vindicate or advance one or more "claims." Id. at 531-32. A "claim" in this context will seek "to add a new ground for relief," assert a "federal basis for relief from a state court's judgment of conviction," or attack "the federal court's previous resolution of a claim on the merits." Id. at 530, 532. In essence, a Rule 60(b) is a second or successive petition if it "in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction." Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006)).
Although the habeas corpus proceedings in Gonzalez fell under 28 U.S.C. § 2244, this Circuit has extended the Gonzalez Court's reasoning to § 2255 claims. In re Nailor, 487 F.3d 1018, 1022-23 (6th Cir. 2007). In Nailor, the Court explained that a Rule 60(b) motion attempting "to add a new ground for relief"' or attacking "the federal court's previous resolution of a claim on the merits" should be treated as a second or successive § 2255 motion. 487 F.3d at 1022 (citing Gonzalez, 545 U.S. at 532). These two circumstances represent an impermissible use of Rule 60(b) to circumvent the preauthorization requirement established in ¶ 8 of 28 U.S.C. § 2255. Id. at 1023.
Defendant previously filed a motion under 28 U.S.C. § 2255 to vacate his sentence that was denied by the district court. (Dkt. 202-207; Dkt. 212.) Defendant now brings a Motion under Rule 60(b) arguing that the district court "should have listened to his arguments" presented in his § 2255 motion and decided in his favor. (Dkt. 224, p. 3.) When considered in light of the Gonzalez criteria, however, Defendant's instant Motion under Rule 60(b) (Dkt. 224) presents claims for relief that oblige the Court to construe it as a second or successive § 2255 motion requiring the preauthorization of the Court of Appeals for the Sixth Circuit.
Defendant's first two claims are of newly discovered evidence and a new constitutional rule. (Dkt. 224, p. 5.) Pursuant to 28 U.S.C. § 2255(h), the Court of Appeals must certify that a second or successive § 2255 motion contains either: (1) newly discovered evidence; or (2) a new constitutional rule "made retroactive to cases on collateral review by the Supreme Court." Defendant's first claim that new evidence has come to light that was unavailable when he first filed his § 2255 motion is a type of claim that the Gonzalez Court found to be "in substance a successive habeas petition." 545 U.S. at 531 ("a motion might seek leave to present `newly discovered evidence' . . . in support of a claim previously denied.").
Defendant's second claim is that Missouri v. Frye and Lafler v. Cooper represent a change in constitutional law that created a "new rule made retroactive on collateral review." (Dkt. 224, p. 5.) According to Defendant, this new rule allows him to raise his new argument that his attorney failed to properly advise him about the contents and consequences of a plea agreement. (Id. at 4.) Under 28 U.S.C. § 2255(h), the Court of Appeals must certify a claim invoking "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."
Next, Defendant claims that his attorney did not "present the issue of [sleep] impairment in an appropriate way" and that this failure rises to the level of ineffective assistance of counsel. (Dkt. 224, p. 4.) Defendant previously raised the issue of his sleep deprivation during trial in his § 2255 motion, arguing that the district court should have conducted a competency hearing sua sponte after his attorney brought the problem to the presiding judge's attention on two separate occasions. (Dkt. 206, pp. 19-22.) Defendant also raised the issue of ineffective assistance of counsel, stating that his attorney's "ineffectiveness relates to all of [Defendant's] claims for relief" in the § 2255 motion. (Id. at 29.)
Defendant thus appears to seek a re-evaluation on the merits of his ineffective assistance of counsel claim by presenting an issue of his attorney's performance rather than attack a defect in the integrity of the federal habeas proceedings. As noted in Gonzalez, an attack based on the omissions of a movant's habeas counsel "ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably." 545 U.S. at 532 n. 5. As such, this claim is properly considered a second or successive § 2255 motion. See Hourani v. United States, 239 F.App'x 195, 198 (6th Cir. 2007) (a Rule 60(b) motion arguing that an attorney failed to present a claim properly is a second or successive habeas petition.)
Defendant also re-asserts his claim that the search warrant affidavit was inadequate, seeking a re-evaluation on the merits. (Dkt. 224, pp. 18-22.) Defendant unsuccessfully raised this issue during the initial appeal of his conviction and sentence. See United States of America v. Ricky Lee Newton, 389 F.3d 631, 635-36 (6th Cir. 2004.) Defendant did not subsequently raise this issue in his § 2255 motion and therefore this claim cannot justify relief under Rule 60(b) from the district court's decision denying his § 2255 motion.
Finally, Defendant raises two new claims. According to Defendant, the Speedy Trial Act was violated in his case because his trial did not begin within the 70-day period as required by the statute. (Dkt. 224, p. 5.) Defendant does not explain why he did not present this claim in his § 2255 motion. In addition, Defendant now claims that the district court did not provide him with a copy of his own § 2255 motion and thus violated Defendant's due process rights because he was unable to write a brief in support.
Defendant is not permitted to circumvent the second or successive petition requirements by labeling his motion as something other than what it is. Gonzalez, 545 U.S at 531. Defendant previously sought permission to file a second or successive § 2255 motion, but the Court of Appeals dismissed his request for want of prosecution. (Dkt. 220.) A year later, Defendant filed the instant motion. (Dkt. 224.) Although ostensibly filed pursuant to Rule 60(b), the motion does not attempt to challenge either a procedural ruling that precluded a merits determination of Defendant's § 2255 motion or the integrity of the previous federal habeas proceeding. Instead, Defendant's claims assert federal bases for relief from the underlying conviction. The Court therefore construes Defendant's Motion under Rule 60(b) (Dkt. 224) as a second or successive § 2255 motion that cannot be filed in this district without permission from the Court of Appeals for the Sixth Circuit.
For the reasons stated above, Defendant's motion requesting a 60-day extension to file a brief in support of his Motion under Rule 60(b) (Dkt. 223) is
Accordingly, the Clerk of Court is hereby
