U.S. v. Neal

Full title: UNITED STATES OF AMERICA, Respondent, v. ROBERT DAVID NEAL…

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Mar 11, 2004

Nos. 3:01-CR-0131-M (01), 3:04-CV-0238-M (N.D. Tex. Mar. 11, 2004)

Opinion

Nos. 3:01-CR-0131-M (01), 3:04-CV-0238-M.

March 11, 2004

MEMORANDUM AND ORDER

BARBARA LYNN, District Judge

The Court has under consideration a "Motion to Modify or Amend Judgement Under Rule 60(b)" of the Federal Rules of Civil Procedure filed by defendant on February 5, 2004. Defendant contends that he has new information from the Internal Revenue Service relating to loss figures used by the Court in calculating his sentence. Based upon this new information, defendant moves for an order to amend or modify the judgment and resulting sentence in his criminal case from twenty-seven months imprisonment to eighteen months imprisonment.

I. PROCEDURAL BACKGROUND

On August 15, 2002, the Court sentenced defendant to twenty-seven months imprisonment and ordered substantial restitution. On April 8, 2003, defendant filed a motion to vacate, set aside, or correct sentence¹ under 28 U.S.C. § 2255 to challenge the restitution ordered in this case, and the Court denied the motion in all respects on May 15, 2003. On January 16, 2004, defendant filed a second motion to vacate in which he claimed that new evidence from the Internal Revenue Service altered the loss calculation of the Court, and thus altered the imposed sentence. On January 27, 2004, the Court transferred the second motion to vacate to the Fifth Circuit Court of Appeals as a successive motion. On March 2, 2004, the court of appeals denied defendant authorization to file a successive § 2255 motion.

1 The Court will hereinafter generically refer to such a motion as a motion to vacate.

II. FEDERAL RULE OF CIVIL PROCEDURE 60(b)

Rather than wait for the ruling by the court of appeals on his second motion to vacate, defendant filed the instant motion under Fed.R.Civ.P. 60(b) to modify the criminal judgment and sentence entered in this case. However, Rule 60(b) has no applicability in a federal criminal action. Compare Fed.R.Civ.P. 1 (stating that "[t]hese rules govern the procedure in the United States district courts in all suits of a civil nature") with Fed.R.Crim.P. 1 (stating that "[t]hese rules govern the procedure in all criminal proceedings in the courts of the United States"); see also, United States v. O'Keefe, 169 F.3d 281, 289 (5th Cir. 1999) (holding that Rule 60(b) "simply does not provide for relief from a judgment in a criminal case"). Defendant's reliance upon Rule 60(b) to amend the criminal judgment thus appears misplaced.

Nevertheless, the federal courts may treat a purported Rule 60(b) motion as a motion to vacate filed under § 2255. See United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998). The instant Rule 60(b) motion essentially seeks to correct and modify defendant's current sentence in light of alleged new evidence received from the Internal Revenue Service. The Court thus construes the Rule 60(b) motion as a motion to vacate filed pursuant to 28 U.S.C. § 2255. Because the instant motion relies upon the same new information and seeks the same relief as defendant's January 16, 2004 motion to vacate, the Court deems the motion successive,² and dismisses it without prejudice pending review by a three-judge panel of the court of appeals.

2 "[A] subsequent motion is 'second or successive' when it: '1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ.'" United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)). The matters raised in the instant motion to vacate were raised in the January 16, 2004 motion to vacate.

Before this Court can consider a successive motion to vacate, the defendant must "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Upon proper motion filed with the court of appeals, a three-judge appellate panel will determine whether this Court should consider a successive motion to vacate. Id. § 2244(b)(3)(B). The panel will authorize the filing of a second or successive motion only upon a prima facie showing that the motion is based on: (1) 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 him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. See id. §§ 2244(b)(3)(C), 2255. In this case, the Fifth Circuit has specifically denied defendant authorization to file a successive motion to vacate in this Court. In the absence of such authorization, this Court must dismiss the instant motion to vacate.

For the foregoing reasons, IT IS HEREBY ORDERED that the "Motion to Modify or Amend Judgement Under Rule 60(b)" of the Federal Rules of Civil Procedure filed by defendant on February 5, 2004, is CONSTRUED as a successive motion to vacate filed pursuant to 28 U.S.C. § 2255, and is DISMISSED without prejudice pending review by a three-judge panel of the Fifth Circuit Court of Appeals.³

3 Although the Fifth Circuit has already denied authorization to file a successive § 2255 motion on the alleged new evidence from the Internal Revenue Service, the Court will not presume that defendant is hereinafter precluded from obtaining the requisite authorization from the Fifth Circuit Court of Appeals.

IT IS SO ORDERED.