United States District Court, S.D. Ohio, Eastern Division
KING MAGISTRATE JUDGE
OPINION AND ORDER
A. SARGUS, JR. CHIEFTJNITED STATES DISTRICT JUDGE
March 6, 2018, the Court dismissed Petitioner's
Motion to Vacate under 28 U.S.C. § 2255 (Doc.
873). Opinion and Order (Doc. 948). This matter is
now before the Court on Petitioner's Motion for
Reconsideration (Doc. 952). For the reasons that follow,
the Motion for Reconsideration is
was convicted, on his pleas of guilty, on two counts of
willful failure to collect or pay tax in violation of 26
U.S.C. § 7202, and on one count of employment of
unauthorized aliens in violation of 8 U.S.C. § 1324a and
18 U.S.C. § 2. He was sentenced to an aggregate term of
66 months' imprisonment followed by three years'
supervised release and was ordered to pay restitution.
Judgment (Doc. 709). In this action under 28 US.C.
§ 2255, Petitioner contends that he was denied the
effective assistance of counsel based on, inter
alia, his counsel's alleged failure to object to the
calculation of his criminal history score and alleged failure
to argue that Petitioner's recommended guideline sentence
significantly overstated his culpability and role in the
offense. The Court dismissed Petitioner's claims as
seeks reconsideration of this Court's dismissal of these
claims. Alternatively, Petitioner requests a certificate of
appealability on these issues.
60(b) of the Federal Rules of Civil Procedure permits a
district court to grant relief from judgment for the
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud . . ., misrepresentation, or misconduct by an
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). "Rule 60(b) does not allow a
defeated litigant a second chance to convince the court to
rule in his or her favor by presenting new explanations,
legal theories, or proof." Jinks v. AlliedSignal,
Inc., 250 F.3d 381. 385 (6th Cir. 2001). Moreover, a
motion under Rule 60(b) may not be used 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)), When filed in a habeas corpus
action, a motion for relief from judgment under Rule 60(b)
may be entertained by a District Court, without prior
authorization by the Court of Appeals as a second or
successive petition, see 28 U.S.C. § 2244(b),
only when the motion attacks - not the substance of the
District Court's resolution of a claim - but some defect
in the integrity of the federal habeas proceedings.
Gonzalez, 545 U.S. at 532. On the other hand,
[a] petitioner's Rule 60(b) motion is a "second or
successive" habeas application "when it 'seeks
vindication of or 'advances' one or more
'claims.'" Post v. Bradshaw, 422 F.3d
419, 424 (6th Cir. 2005) (quoting Gonzalez, 545 U.S.
at 531-32, 125 S.Ct. 2641). A "claim, " in turn,
"is 'an asserted federal basis for relief from a
state court's judgment of conviction.'"