The opinion of the court was delivered by: Magistrate Judge King
On August 26, 1998, this Court dismissed the motion to vacate under 28 U.S.C. §2255 and, on February 7, 2001, the United States Court of Appeals for the Sixth Circuit affirmed that judgment. On November 1, 2006, petitioner, through counsel, filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).*fn1 For the reasons that follow, respondent is DIRECTED to respond to the merits of petitioner's motion within twenty (20) days of the date of this order.
The United States Court of Appeals for the Sixth Circuit summarized the history of this case as follows:
In 1992, Gibbs was tried before a jury and convicted of conspiracy to possess cocaine and heroin with the intent to distribute. United States v. Hood, Nos. 92-3657, 1994 WL 4723, at *1 (6th Cir. Jan. 6, 1994) (unpublished). The court sentenced Gibbs to a total of 360 months of imprisonment. A panel of this court affirmed Gibbs's conviction and sentence. Id. at **1, 12. In May 1997, Gibbs filed a § 2255 motion, claiming, inter alia, that counsel was ineffective in failing to investigate and object to the use of his prior offenses to classify him as a career offender. The district court denied §2255 relief, but granted Gibbs a certificate of appealability on the issue whether Gibbs "was denied the effective assistance of counsel in violation of his Sixth Amendment rights for failing to object to the use of petitioner's prior state court convictions and the determination of petitioner's career-offender status."
Gibbs v. United States, 3 Fed.Appx. 404, 2001 WL 133120 (6th Cir. February 5, 2001). On February 5, 2001, the Sixth Circuit affirmed this Court's dismissal of petitioner's §2255 petition. Id. On October 1, 2001, the United States Supreme Court denied petitioner's petition for a writ of certiorari. Gibbs v. United States, 534 U.S. 929 (2001).
This matter is now before the Court on petitioner's November 1, 2006, motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), which provides:
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
Petitioner contends that relief from judgment is warranted in this case because the United States Court of Appeals for the Sixth Circuit has now characterized the unreported three judge panel decision in Gibbs v. United States, supra, affirming the denial of Gibbs' §2255 petition, as wrongly decided because Gibbs' prior 1987 conviction under O.R.C. §2925.03(A)(4) should not have been used to classify him as a career offender under the United States Sentencing Guidelines. United States v. Montanez, 442 F.3d 485, 491 (6th Cir. 2006), . The Sixth Circuit reasoned as follows:
The question before us is whether... two drug-related convictions under former Ohio Revised Code § 2925.03(A)(6) and (9) constitute predicate offenses for career offender status. Citing this Court's unpublished disposition in Gibbs v. United States, 3 Fed.Appx. 404 (2001), the district court determined that both of Montanez's state court convictions qualified as predicate controlled substance offenses....
... [S]section 4B1.1 of the Guidelines states:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior ...