United States District Court, S.D. Ohio, Western Division
Michael R. Barrett, United States District Judge.
United States v. Burris, 912 F.3d 386 (6th Cir.
2019), the Sixth Circuit, en banc, overruled its prior
decision (Doc. 96) in Defendant's criminal case. See
United States v. Anderson, 695 F.3d 390 (6th Cir. 2012),
overruled by Burris. Perhaps understandably,
Defendant sees this as a new opportunity to challenge his
sentence. To that end, he has filed a Fed.R.Civ.P. 60(b)
motion (the “Rule 60(b) motion”) (Doc. 117), to
which Plaintiff has responded (Doc. 120) and he has replied
(Doc. 123). Defendant also filed a motion for summary
disposition under Fed.R.Civ.P. 56 of his Rule 60(b) motion.
(Doc. 121). For the reasons that follow, the Court finds that
Defendant's Rule 60(b) claim is, in fact, a second or
successive § 2255 motion over which the Court does not
Court refers to the Sixth Circuit's opinion (Doc. 96) for
the underlying factual background to this case and its own
prior opinion and order (Doc. 107) denying Defendant's
§ 2255 motion for the history pertaining to that motion
and his direct appeal. The Court denied § 2255 relief on
February 10, 2015. In the interim, the Supreme Court decided
Johnson v. United States, 135 S.Ct. 2551, 2563
(2015), which held that the residual clause of the Armed
Career Criminal Act (“ACCA”) is unconstitutional.
In the wake of that ruling, the Court appointed counsel to
evaluate Defendant's case for resulting, meritorious
claims. (Doc. 114). Counsel determined that no further
filings were warranted. (See June 20, 2016 docket
two years later, the Sixth Circuit decided Burris,
which held that
(1) Ohio's felonious-assault [Ohio Rev. Code §
2903.11(A)] and aggravated-assault [Ohio Rev. Code §
2903.12(A)] statutes are too broad to qualify categorically
as violent-felony predicates under the ACCA and Guidelines
elements clauses, (2) that both statutes are divisible, and
(3) that only the (A)(2) version of each statute qualifies as
a violent-felony predicate under the ACCA and Guidelines
Burris, 912 F.3d at 407. Defendant thereafter moved
the Sixth Circuit to recall the mandate pertaining to the
overruled decision in his case. (Sixth Circuit No. 10-3273,
Doc. 90). The Court denied the motion, noting:
Anderson argues that because Burris overruled the
decision upholding his sentence under the Armed Career
Criminal Act, his appeal should be reconsidered.
Unfortunately, Anderson's conviction became final years
before the court issued the Burris decision.
“[T]he proper remedy to attack a sentence in a final
criminal proceeding lies under § 2255, and the fact that
such remedy is no longer available does not warrant a recall
of the mandate[.]” [United States v. Saikaly,
424 F.3d 514, 517 (6th Cir. 2005)]; cf.
[Calderon v. Thompson, 523 U.S. 538, 553 (1998)] (a
motion to recall the mandate to reopen a § 2254 habeas
appeal may be regarded as a successive habeas petition).
(Doc. 116). Shortly after the entry of this order, Defendant
filed his Rule 60(b) motion. (Doc. 117). Defendant first
asserts that this Court ignored the merits of his challenge
to his ACCA violent-felony predicates in his § 2255
motion. (Id. at PAGEID #: 920). He then argues that
this, coupled with the intervening change in law demonstrated
in Burris, demonstrate extraordinary circumstances
that entitle him to relief from the Court's prior order
(Doc. 107) under Fed.R.Civ.P. 60(b)(6).
legal framework for reviewing a Rule 60(b) motion in
collateral proceedings was set out in In re Nailor,
487 F.3d 1018 (6th Cir. 2007). In Nailor, the Court
noted that Rule 11 of the Rules Governing Sec. 2255
Proceedings for the U.S. Dist. Courts establishes that the
Federal Rules of Civil Procedure apply in § 2255
proceedings; but according to Rule 12, only to the extent
“not inconsistent with any statutory provisions or
these rules.” Id. at 1021 (internal quotation
omitted). The Nailor court went on to frame the
relevant inquiry as whether or not a 60(b) motion
“raises a claim, defined . . . as ‘an asserted
federal basis for relief . . . .'” Id. at
1022 (citing Gonzalez v. Crosby, 545 U.S. 524, 530
(2005)). A motion that “‘add[s] a new ground for
relief'” or that “‘attacks the federal
court's previous resolution of a claim on the
merits'” is a motion that, in fact, seeks
second or successive § 2255 relief and must clear
additional procedural hurdles (see § 2255(h))
before receiving substantive review. Id. (citing
Gonzalez, 545 U.S. at 532). By contrast, a motion
that attacks “‘some defect in the integrity of
the federal habeas proceedings'” is properly
brought pursuant to Rule 60(b). Id. (citing
Gonzalez, 545 U.S. at 532).
extent that Defendant, in fact, is raising a § 2255
claim, it is subject to careful gatekeeping requirements.
See Sterling v. O'Brien, No. Civ.A. 05CV78HRW,
2005 WL 1657086, *3 (E.D. Ky. July 14, 2005)
(“[Antiterrorism and Effective Death Penalty Act]
imposed several statutory restrictions on prisoners'
ability to file relief under 28 U.S.C. § . . . 2255,
including . . . the stringent requirement that a prisoner who
has already filed an unsuccessful § 2255 motion . . .
must receive pre-authorization from the appropriate circuit
court.”). Under 28 U.S.C. § 2244(b)(3)(A),
“[b]efore a second or successive application permitted
by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the
application.” Section 2255(h) incorporates this
requirement and allows a second or successive motion only
upon the demonstration of certain newly discovered evidence
or a new, relevant, and retroactive rule of constitutional
law. 28 U.S.C. §§ 2255(h)(1), (2).
attacks an order entered in his § 2255 proceedings, in
which the Federal Rules of Civil Procedure may apply. See
United States v. Gibson, 424 Fed.Appx. 461, 464 (6th
Cir. 2011) (contrasting application of the civil rules in
habeas proceedings with criminal proceedings). Cf. United
States v. Arrington, 763 F.3d 17, 22 (D.C. Cir. 2014)
(While noting that the civil rules do not apply to criminal
proceedings, stating that it “might also understand
[the defendant's] Rule 60(b) motion to seek whatever
relief is available in connection with his earlier
post-conviction civil ...