Opinion
NO. 1:03-CR-00079, 1:06-CV-00216.
August 13, 2009
OPINION AND ORDER
This matter is before the Court on the Petitioner Tommy Howard's ("Petitioner") Pro Se Motion to Reopen Judgment (doc. 69), Petitioner's Pro Se Motion to Invoke Inherent Power to Prevent Injustice (doc. 70), the government's Response in Opposition to Petitioner's Motions (doc. 71), Petitioner's Supplemental Rule 60(b) Motion for Relief (doc. 74), the government's Response to Petitioner's Supplemental Motion (doc. 75), and Petitioner's Reply (doc. 77). Also before the Court is Petitioner's Pro Se Motion for Extension of Time to File Notice of Appeal of Judgment (doc. 72), and the government's Response (doc. 76). For the reasons stated herein, the Court DENIES Petitioner's Motion for Extension of Time (doc. 72) and TRANSFERS Petitioner's Motion to Reopen Judgment (docs. 69, 70, 74) to the Sixth Circuit Court of Appeals.
I. Background
On June 18, 2003, a federal grand jury issued a four count indictment alleging: (1) possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1); (2) possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841; (3) possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841; and (4) possession of a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (doc. 12). Petitioner entered a plea of guilty to Count Four, pursuant to a plea agreement (doc. 23). In the plea agreement, Petitioner acknowledged that he understood that he may be considered to be a career offender under U.S.S.G. § 4B1.1 (doc. 22).
According to Petitioner's Presentence Report, Petitioner's prior convictions considered to have career offender status under U.S.S.G. § 4B1.1(a) include: robbery (O.R.C. § 2911.02) and aggravating trafficking (O.R.C. § 2925.03(A)(4)) in the Hamilton County Court of Common Pleas Case No.: B 93-01807 and possession of cocaine (O.R.C. § 2925.11(A)) in the Hamilton County Court of Common Pleas Case No. B 98-05912.
The Court sentenced Petitioner to 292 months, five years supervised release, a $100.00 general assessment, and a $1,000.00 fine (doc. 23). Petitioner appealed this sentence; his direct appeal was denied (Id.). Petitioner then filed a Motion to Vacate Under 28 U.S.C. § 2255, which was denied (doc. 53). Thereafter, Petitioner filed a timely Motion to Alter or Amend Judgment Pursuant to Rule 59(e) Conjoined with Rule 15 to Amend Pleading (doc. 54), which this Court, applying Gonzalez v. Crosby, 545 U.S. 524; 125 S.Ct. 2641 (2005), construed as a second successive habeas petition and transferred to the Court of Appeals (doc. 57).
The Sixth Circuit determined that the transferred motion was not a second or successive habeas petition, stating:
Even though Howard's Rule 59(e) raised a new ground for habeas relief, it was not a second motion to vacate sentence and thus did not need to be transferred to this court. This conclusion is supported by the reasoning of the Seventh Circuit, which distinguished between Rule 59(e) and Rule 60(b) motions, and reasoned that Rule 59(e) motions are not subject to the statutory limitations placed on successive collateral attacks on criminal judgments.Howard v. United States, Case No. 07-3447 (6th Cir., July 22, 2008) (citing Curry v. United States, 307 F.3d 664, 665 (7th Cir. 2002). The Court of Appeals held that "extending the holding ofGonzalez to Rule 59(e) would attribute to Congress the unlikely intent to preclude broadly the reconsideration of just-entered judgments." Id. Considering the limits of Rule 59(e) relief, the Court of Appeals found "[m]ost significantly, a petitioner only has ten days within which to file a Rule 59(e) motion, and even then may request only that the district court reconsider matters actually raised before it." Id. The Court of Appeals further speculated that "it appears in this case that the district court may well deny the Rule 59(e) judgment on that ground [that Rule 59(e) allows for reconsideration, but does not permit new arguments that could have been raised prior to judgment]." Id. The Court of Appeals transferred the motion back to this Court for further proceedings consistent with their opinion. Id.
On remand, the Court considered Petitioner's motion under Rule 59(e) and held that because Petitioner sought to raise new legal arguments pursuant to Rule 59(e) that could have been raised prior to his motion to vacate sentence, it was necessary to deny Petitioner's motion to alter or amend judgment (doc. 67).
On January 14, 2009, Petitioner filed a pro se Rule 60(b) motion to "reopen judgment" as well as a motion to invoke "inherent power to prevent injustice." On February 9, 2009, the government filed an omnibus response to Petitioner's two post-judgment motions. The government staked the position that:
[t]o the extent that Howard is asserting a `true' Rule 60(b)(4) motion-that is, to the extent that he is not seeking to challenge his underlying criminal conviction and sentence-the Court should deny the motion on the merits because there is absolutely no basis to think that this Court's judgment entry is (sic) denying his first § 2255 motion is somehow void (doc. 71).
Thereafter, on March 4, 2009, Petitioner, through counsel, filed a supplemental motion to vacate under Rule 60(b) (doc. 74). Petitioner argues that the Court has the authority to adjudicate this motion under Rule 60(b) because it attacks a defect in the integrity of the federal proceeding that was not previously raised in a proper motion for the district court to consider (Id., citing Gonzalez v. Crosby, 545 U.S. 524).
II. Analysis
Because Petitioner requests that the Court amend its previous ruling on Petitioner's habeas motion, the Court must determine whether the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) controls. Gonzalez v. Crosby, 545 U.S. 524; 125 S.Ct. 2641 (2005) (finding that 28 U.S.C. §§ 2254 and 2244 control when the movant seeks to add a new ground for relief under his original habeas petition); Gibbs v. U.S. 2006 U.S. Dist. LEXIS 91557 (S.D. Ohio 2006) (applying Gonzalez to 28 U.S.C. § 2255 cases). When a petitioner's motion questions the reasoning for the court's resolution of his claim on the merits and not a "defect in the integrity of the federal habeas proceedings," the motion should be treated as a successive habeas petition. Gonzalez, 125 S.Ct. at 2648; Banks v. Wolfe, 2006 U.S. Dist. LEXIS 68824 (S.D. Ohio 2006). For the following reasons, this Court finds that Petitioner's motion constitutes a second or successive habeas petition, which is governed by 28 U.S.C. §§ 2255 and 2244. Therefore, this Court does not have jurisdiction to weigh Petitioner's claims for relief.
A. Petitioner's Application for Relief Under Federal Rules of Civil Procedure 60(b)
Section 2255, Rule 12 of the AEDPA limits the applicability of the Federal Rules of Civil Procedure in habeas actions "to the extent that they are not inconsistent with any statutory provisions or these rules." 28 U.S.C. § 2255 Rule 12.
The relevant provision of the AEDPA requires: first, certification by the appropriate court of appeals under § 2244; and
[second], newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or [third] a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255.
The Supreme Court in Gonzalez, concluded that using Rule 60(b) to seek relief from the original judgment by either requesting new claims for relief, presenting new evidence, or presenting a change in substantive law is inconsistent with the AEDPA.Gonzalez, 125 S.Ct. at 2657. Additionally, unless the petitioner seeks to remedy a "defect in the integrity of the federal habeas proceedings," any request for relief should be treated as a successive habeas petition. Gonzalez, 125 S.Ct. at 2648; Banks, 2006 U.S. Dist. at 15.
Here, Petitioner argues that his supplemental motion is correctly brought pursuant to both Fed R. Civ. P. 60(b)(4) (6), and is not a second successive habeas petition because it seeks to remedy a defect in the integrity of a federal judicial proceeding (doc. 74). Specifically, Petitioner claims that the judgment entered in this case was void because the indictment was actually amended and he was convicted of an "offense" that does not exist in the federal criminal code (Id., citing Fed.R.Civ.P. 60(b)(4)). Petitioner argues that because the judgment entered in Petitioner's underlying case was void, the Court's order denying his § 2255 motion was also void (Id.). Further, Petitioner contends that "extraordinary circumstances" exist which justify the reopening of the final judgment dismissing habeas petition (Id., citing Fed.R. 60(b); Mitchell v. Rees, 430 F.Supp.2d 717, 724-25 (M.D. Tenn. 2006). In response, the government argues that Petitioner's motion is, in fact, an unauthorized second or successive § 2255 motion because it attacks the Court's previous resolution of his "conviction for crime unrelated to indictment" claim on the merits (doc. 75).
The Court finds the government's position well-taken. As in his previous motion to vacate, pursuant to Rule 59, Petitioner seeks relief from his conviction for possession of a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1), arguing there was a defect in the course of proceedings in the underlying criminal case related to the description of the 18 U.S.C. § 924(c) charge to which Petitioner pled guilty (doc. 74). Petitioner raised this claim in his § 2255 motion, the Court addressed this claim and rejected it, resolving the issue on its merits (doc. 53). Petitioner's argument that the criminal judgment was void and therefore the § 2255 motion is void is still a claim for relief from that judgment, not, as Petitioner avers, a motion to correct a "defect in the integrity of the federal habeas proceedings." See Halliburton v. United States, 59 Fed. Appx. 55, 56 (6th Cir. 2003) (Rule 60(b) motion alleging original judgment was void "was clearly seeking to challenge the validity of his judgment of conviction and sentence" and this "properly construed as a second or successive postconviction action"). Therefore, because Petitioner seeks relief based upon the merits of this Court's prior decision on his original § 2255 petition, the Court concludes that Petitioner's motion is indistinguishable from a second or successive habeas petition.
B. Jurisdiction
Petitioner may not file a second or successive habeas petition or motion to vacate without receiving permission to file such motion from the court of appeals in accordance with 28 U.S.C. § 2244. In re Green, 144 F.3d 384, 388 (6th Cir. 1998); Casey v. Hemingway, 42 Fed. Appx. 674 (6th Cir. 2002). Having reviewed this matter, the Court determines that Petitioner seeks to file a second or successive habeas petition or motion to vacate. Because Petitioner failed to seek permission from the Court of Appeals prior to filing his motion, Petitioner's motion is not properly before the Court.
III. Conclusion
For the reasons stated herein, Petitioner's Motion to Reopen Judgment (docs. 69, 70, 74) is hereby TRANSFERRED to the Sixth Circuit Court of Appeals. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) ("District courts should transfer cases to this court whenever prisoners seek to file a second or successive habeas petition or motion to vacate, so this court can consider granting the prisoner permission to file the second or successive application under 28 U.S.C. §§ 2244 or 2255"). Further, as Petitioner presented no support for his request, the Court DENIES Petitioner's Pro Se Motion for Extension of Time to File Notice of Appeal of Judgment (doc. 72).
Finally, the Court DOES NOT ISSUE a certificate of appealability because Petitioner has not demonstrated "that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are `adequate to deserve encouragement to proceed further.'"Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983) (internal quotations omitted). The Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of this Order would not be taken in "good faith," and therefore DENIES petitioner leave to appeal in forma pauperis.
SO ORDERED.
Exhibit