United States District Court, S.D. Ohio, Eastern Division
JAMES L. EWING, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Vascura, Magistrate Judge
OPINION AND ORDER
C. SMITH, UNITED STATES DISTRICT COURT JUDGE
January 8, 2018, the Magistrate Judge issued an Order and
Report and Recommendation recommending that
Petitioner's motion for relief from judgment pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure be
dismissed, in part, and directing Respondent to provide a
response to the motion regarding application of
Beckles to Petitioner's mandatory Guideline
sentence. (ECF No. 108.) Although the parties were advised of
the right to object to the Magistrate Judge's Order
and Report and Recommendation, and the Court provided
Petitioner an extension of time for the filing of objections,
no objections have been filed. The Order and Report and
Recommendation (ECF No. 108) are
ADOPTED and AFFIRMED. For
the reasons discussed therein, and for the reasons that
follow, the motion for relief from judgment (ECF No. 105) is
sole remaining issue involves Petitioner's claim that
relief from the Court's March 24, 2017 Opinion and
Order denying his Motion to Vacate under 28 U.S.C.
§ 2255 is warranted on his claim that his sentence
violates Johnson v. United States, 135 S.Ct. 2551
(2015), in view of Hill v. Masters, 836 F.3d 591
(6th Cir. 2016), because he was sentenced under the
mandatory, rather than the advisory, United States Sentencing
contends that Petitioner's current motion constitutes a
successive petition and that this Court, therefore, lacks
jurisdiction to consider Petitioner's claim absent
authorization from the United States Court of Appeals for the
Sixth Circuit. United States' Response to
Petitioner's Motion for Relief From Judgment
(ECF No. 112, PAGEID #1031.) Rule 60(b) motions may not be
used as vehicles to circumvent the limitations that Congress
has placed on the presentation of claims in a second or
successive application for habeas relief. See
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, 545 U.S. at
531, 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. Proc. 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 ([2d
Cir.] 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. Proc. 60(b)(2), in support of a claim previously
denied. E.g., Rodwell v. Pepe, 324 F.3d 66, 69 ([1st
Cir.] 2003). Or a motion might contend that a subsequent
change in substantive law is a “reason justifying
relief, ” Fed. Rule Civ. Proc. 60(b)(6), from the
previous denial of a claim. E.g., Dunlap v.
Litscher, 301 F.3d 873, 876 ([7th Cir.] 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.
as discussed, Petitioner argues that the Court improperly
dismissed his claim that his sentence violates
Johnson. Thus, the Rule 60(b) motion constitutes a
successive petition, and this Court lacks jurisdiction to
consider it 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 curiam).
Hill v. Masters, 836 F.3d at 591, referred to by
Petitioner, does not assist him. In Hill, the Sixth
Circuit held that a prisoner may file an action under the
provision of 28 U.S.C. § 2241 challenging his enhanced
sentence as a career offender, if he was sentenced under the
mandatory Guidelines and is foreclosed from filing a
successive petition under § 2255 and
“when a subsequent retroactive change in statutory
interpretation by the Supreme Court reveals that a previous
conviction is not a predicate offense for a career-offender
enhancement.” Id. at 599-600. However, the
Sixth Circuit has held that “whether Johnson
applies to the mandatory Guidelines is an ‘open
question[.]'” Chubb v. United States, 707
Fed.Appx. 388, 390 (6th Cir. 2018) (dismissing § 2255
action based on application of Johnson to mandatory
Guidelines sentence as time-barred under the provision of 28
U.S.C. § 2255(f) (citing Raybon v. United
States, 867 F.3d 625 (6th Cir. 2017)). “Because it
is an open question, it is not a ‘right'
that ‘has been newly recognized by the Supreme
Court' let alone one that was ‘made retroactively
applicable to cases on collateral review.'”
Raybon, 867 F.3d at 630 (citations omitted). See
also Walker v. United States, ___ Fed.Appx. ___, No.
17-5500, 2018 WL 739381, at *1 (6th Cir. Feb. 7, 2018)
Petitioner's motion for relief from judgment (ECF No.
105) is DENIED.
IS SO ORDERED.
Hill involved application of
Descamps v. United States, 570 U.S. 254 (2013),
whereby one of the petitioner's prior convictions no
longer qualified him to be sentenced as a ...