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United States v. Jackson

United States District Court, D. Kansas

June 27, 2018

UNITED STATES OF AMERICA, Respondent-Plaintiff,
v.
CARLOS JACKSON, Petitioner-Defendant.

          MEMORANDUM & ORDER

          CARLOS MURGUIA United States District Judge

         This matter comes before the court upon petitioner Carlos Jackson's Motion for Relief from Void Judgment (Doc. 192) and Notice of Plain Error Under Rule 52(b) (Doc. 204). The government filed a response to both motions (Doc. 207).

         I. Case Background

         On March 27, 2013, pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement, petitioner pleaded guilty to Counts I (conspiracy to manufacture, possess with intent to distribute, and to distribute 280 grams of crack cocaine) and II (unlawful use of a firearm during and relating to a drug trafficking crime). On July 26, 2013, he was sentenced to 180 months imprisonment with five years supervised release. Petitioner's 28 U.S.C. § 2255 motion based on ineffective assistance of counsel was denied on August 28, 2014 (Doc. 150).

         Petitioner's current motions are brought pursuant to Fed. R. Crim. P. 60(b) and 52(b). Petitioner's Rule 60(b) asks the court to find the court's August 28, 2014 Memorandum and Order denying petitioner's § 2255 motion void, because petitioner argues that the court failed to consider all the claims raised in that motion. Petitioner's 52(b) motion asks the court to find that it committed plain error when it (1) adopted the presentence investigation report's criminal history calculation and (2) allowed prosecutorial overreach by allowing the government to allegedly double petitioner's drug quantity.

         II. Legal Standard For Fed. R. Crim. P. 60(b) Motions

         Rule 60(b) provides that the court may relieve a party from a final order for various reasons, including “any other reason that justifies relief.” Fed.R.Civ.P. 60(b). Relief under Rule 60(b) is “extraordinary and may only be granted in exceptional circumstances.” Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006) (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 756 (10th Cir. 1996)). A 60(b) motion is not an opportunity for a party to reargue the facts or the law or “to challenge the correctness of the district court's judgment by arguing that the district court misapplied the law or misunderstood their position.” Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991). However, the court does have the equitable power to do justice in a case by correcting an error of law. Id. Motions under Rule 60(b) must be made “within a reasonable time” and for many reasons no more than a year after the order was entered. Fed.R.Civ.P. 60(c)(1).

         The United States Supreme Court in Gonzalez v. Crosby decided when, in a habeas case, a Rule 60(b) motion should be considered a second or successive habeas corpus petition under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(b). 545 U.S. 524 (2005).

         The Tenth Circuit applies the Gonzalez analysis to both § 2254 and § 2255 proceedings. In re Lindsey, 582 F.3d 1173, 1174 (10th Cir. 2009) (citing United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006)). Under Gonzalez as interpreted in this circuit,

[A] 60(b) motion 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 . . . . Conversely, it is a “true” 60(b) motion if it either (1) challenges only a procedural ruling of the habeas court which precluded a merits determination of the habeas application . . . or (2) challenges a defect in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition.

Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006). Examples of true 60(b) motions are, for example “motion[s] asserting that the federal district court incorrectly dismissed a petition for failure to exhaust, procedural bar, or because of the statute of limitations.” Id. at 1216. Examples of motions that should be treated as second or successive habeas petitions are:

motion[s] seeking to present a claim of constitutional error omitted from the movant's initial habeas petition . . . seeking leave to present newly discovered evidence in order to advance the merits of a claim previously denied . . . or a motion seek[ing] vindication of a habeas claim by challenging the habeas court's previous ruling on the merits of that claim.

Id. “A claim that the district court failed to consider a ground raised in the habeas petition represents a ‘true' 60(b) claim.” United States v. Rogers, 657 Fed.Appx. 735, 738 (10th Cir. 2016).

         III. ...


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