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United States v. Anderson

United States District Court, S.D. Ohio, Western Division

November 21, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RAMONE ANDERSON, Defendant/Petitioner.

          ORDER

          Michael R. Barrett, United States District Judge.

         In 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).[1] 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 have jurisdiction.

         I. BACKGROUND

         The 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 entry).

         Over 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 elements clauses.

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).

         II. LAW

         The 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).

         To the 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).

         III. ANALYSIS

         Defendant 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 ...


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