United States District Court, S.D. Ohio, Eastern Division
DOUGLAS A. TURNS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
L. GRAHAM, United States District Judge
December 6, 2017, Petitioner filed a motion, pursuant to Rule
60(b)(6) of the Federal Rules of Civil Procedure, for
reconsideration of an earlier motion to vacate, set aside, or
correct sentence. The motion has been docketed as a
Motion to Vacate under 28 U.S.C. § 2255. (ECF
No. 298). For the reasons that follow, the motion is
is serving 858 months in prison on his convictions, following
a jury trial, on charges of conspiracy to defraud the United
States in violation of 18 U.S.C. § 371, four counts of
armed bank robbery in violation of 18 U.S.C. § 2113(a),
(d), and four counts of using a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c). See
Amended Judgment (ECF No. 116). The United States Court
of Appeals for the Sixth Circuit affirmed Petitioner's
convictions and sentence. United States v. Beverly,
369 F.3d 516 (6th Cir. 2004). Petitioner pursued
federal habeas corpus relief, Motion to Vacate under 28
U.S.C. § 2255 (ECF No. 129), which was denied
following an evidentiary hearing, Opinion and Order
(ECF No. 209). That dismissal was affirmed on appeal,
Turns v. United States of America, No. 06-4199
(6th Cir. Sept. 25, 2007), and the United States
Supreme Court denied the petition for a writ of
certiorari, Turns v. United States, Case No. 07-8257
(Sup. Ct. Feb. 19, 2008). Petitioner also twice sought
authorization for the filing of a successive motion to vacate
under 28 U.S.C. § 2255 based on newly discovered
evidence, without success. In re: Douglas A. Turns,
No. 13-4263 (6th Cir. Jul. 17, 2014); In
re Douglas A. Turns, No. 16-3850
(6th Cir. Sept. 21, 2016). On December 6, 2017,
Petitioner filed the motion presently before this Court.
current motion, Petitioner argues that the imposition of
consecutive terms of incarceration on all four counts of
using a firearm during a crime of violence, in violation of
18 U.S.C. § 924(c), is unduly excessive and grossly
disproportionate to the crimes charged. Petitioner maintains
that the Court improperly punished him for exercising his
right to a jury trial because co-defendants who pleaded
guilty have since been released from prison. He also argues
that, as a result of his lengthy prison sentence, he has lost
contact with his family, he has aged, and he suffers health
issues. He represents that he will not present a threat to
society should he be released from prison. Petitioner
requests the Court to vacate his convictions on Counts 3 and
5 and re-sentence him in light of United States v.
Holloway, 68 F.Supp.3d 310 (E.D.N.Y.
motion is plainly successive and Rule 60(b) may not be used
as a vehicle to circumvent the limitations that Congress has
placed on the presentation of claims in a second or
successive application for habeas relief under 28 U.S.C.
§ 2255. Moreland v. Robinson, 813 F.3d 315, 322
(6th Cir. 2016) (citing Gonzalez v. Crosby, 545 U.S.
524, 531-32 (2005); Clark v. United States, 764 F.3d
653, 658-59 (6th Cir. 2014)). In Gonzalez, the
Supreme Court held that a motion under Rule 60(b) that seeks
to assert a new substantive claim for habeas relief must be
treated as a successive petition for which prior
authorization is required:
In some instances, a Rule 60(b) motion will contain one or
more “claims.” For example, it might
straightforwardly assert that owing to “excusable
neglect, ” Fed. Rule Civ. Pro. 60(b)(1), the
movant's habeas petition had omitted a claim of
constitutional error, and seek leave to present that claim.
Cf. Harris v. United States, 367 F.3d 74, 80-81
(C.A. 2 2004) (petitioner's Rule 60(b) motion sought
relief from judgment because habeas counsel had failed to
raise a Sixth Amendment claim). Similarly, a motion might
seek leave to present “newly discovered evidence,
” Fed. Rule Civ. Pro. 60(b)(2), in support of a claim
previously denied. E.g., Rodwell v. Pepe, 324 F.3d
66, 69 (C.A. 1 2003). Or a motion might contend that a
subsequent change in substantive law is a “reason
justifying relief, ” Fed. Rule Civ. Pro. 60(b)(6), from
the previous denial of a claim. E.g., Dunlap v.
Litscher, 301 F.3d 873, 876 (C.A. 7 2002). Virtually
every Court of Appeals to consider the question has held that
such a pleading, although labeled a Rule 60(b) motion, is in
substance a successive habeas petition and should be treated
accordingly. E.g., Rodwell, supra, at 71-72;
Dunlap, supra, at 876.
Id. at 532. Here, Petitioner raises new claims and
refers to new authority, i.e., Holloway, in support
of his argument that the Court should reduce his sentence.
Under these circumstances, this Court lacks jurisdiction to
consider this successive petition absent authorization from
the United States Court of Appeals for the Sixth Circuit.
See 28 U.S.C. § 2244(b) (3)(A); In re
Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per
event, this Court lacks the jurisdiction to re-sentence the
Petitioner as he requests. See Brown, 2016 WL
4745822, at *1. Generally, a federal court “may not
modify a term of imprisonment once it has been
imposed.” Dillon v. United States, 560 U.S.
817, 819 (2010) (citing 18 U.S.C. § 3582(c)). “In
the sentencing context, there is simply no such thing as a
‘motion to reconsider' an otherwise final
sentence[.]” United States v. Dotz, 455 F.3d
644, 648 (6th Cir. 2006). “A district court may modify
a defendant's sentence only as authorized by
statute.” United States v. Howard, 644 F.3d
455, 457 (6th Cir. 2011) (citing United States v.
Johnson, 564 F.3d 419, 421 (6th Cir. 2009)).
Congress grants the district courts authority to modify a
final sentence only if it is: (1) upon motion by the Director
of the Federal Bureau of Prisons; (2) on its own motion if
the applicable sentencing guideline has been reduced; or (3)
pursuant to Federal Rules of Criminal Procedure Rule 35. A
final sentence is only modifiable under Fed. R. Crim. P. 35
if: “(1) it has been vacated and remanded; (2) the
government moves to reduce it; or (3) the district court acts
within seven days of the original sentence.”
Brown v. United States, 2016 WL 4745822, at *1
(citing United States v. Gevaras, 961 F.Supp. 192,
195 (N.D. Ohio 1996) (citing 18 U.S.C. § 3582(c)).
Petitioner's motion (ECF No. 298) is