United States District Court, D. Kansas
MEMORANDUM & ORDER
MURGUIA United States District Judge
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).
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).
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.
Legal Standard For Fed. R. Crim. P. 60(b) Motions
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.
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).
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
[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
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
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).