United States District Court, N.D. Ohio, Eastern Division
RYAN D. MALONE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OF OPINION AND ORDER (RESOLVING ECF NO.
Y. Pearson United States District Judge.
is Petitioner's motion for relief from
judgment. ECF No. 165. The matter has been briefed.
ECF No. 165-1, ECF No. 169. For the reasons explained below,
Petitioner's motion is denied.
pleaded guilty without a plea agreement to one count for
possessing a firearm in violation of 18 U.S.C. §
922(g)(1). ECF No. 39 at PageID #: 130-47. The Court
sentenced Petitioner to 120 months of incarceration. ECF No.
60. Petitioner appealed and the Sixth Circuit reversed in
light of Johnson v. United States, 135 S.Ct. 2551
(2015). United States v. Malone, 646 Fed.Appx. 454,
456 (6th Cir. 2016). On remand, the Court varied upwards and
imposed a 120-month sentence and the Sixth Circuit affirmed.
ECF No. 137.
subsequently filed a timely motion to vacate under 28 U.S.C.
§ 2255, seeking habeas relief due to: (1) ineffective
assistance of counsel; (2) due process violations; (3) and
other constitutional claims. ECF No. 138. The Court denied
petitioner's habeas relief. ECF No. 154. Petitioner
appealed and the Sixth Circuit granted Malone's
certificate of appealability regarding his allegation of
ineffective assistance of counsel on appeal for counsel's
failure to press a claim that Ohio Rev Code. Ann. §
2925.03(A)(2) was not a “controlled substance”
offense under USSG § 2K2.1. ECF No. 162.
Petitioner's appeal remains pending.
the Sixth Circuit granted Malone's certificate of
appealability, the Supreme Court decided Rehaif v. United
States, 139 S.Ct. 2191 (2019), which held that a
conviction under 18 U.S.C. § 922 requires proving that
the defendant was not only aware of his possession of a
firearm but also his status that made owning a firearm
illegal. Petitioner filed the pending motion,
seeking relief from the Court's dismissal of his §
2255 motion and “provisionally permitting to
incorporate Rehaif into his” denied motion.
ECF No. 165-1 at PageID #: 1147; ECF No. 165.
Successive Habeas Motion
28 U.S.C. § 2244(b)(3), the Sixth Circuit must authorize
a district court's consideration of a successive habeas
motion. Absent this approval, the Court is “deprive[d]
. . . of jurisdiction to adjudicate the claims raised”
in a successive habeas motion. Moreland v. Robinson,
813 F.3d 315, 322 (6th Cir. 2016) (citing Burton v.
Stewart, 549 U.S. 147, 149 (2007) (per curiam)). To
resolve this motion, the Court must determine whether
Petitioner's “Rule 60(b) motion is a
‘true' Rule 60(b) motion or simply a
“second or successive” habeas application cloaked
in Rule 60(b) garb.” Franklin v.
Jenkins, 839 F.3d 465, 473 (6th Cir. 2016) (citing
Gonzalez v. Crosby, 545 U.S. 524, 531 (2005)). If,
on the other hand, Petitioner's motion is a
“true” Rule 60(b) motion for relief from
judgment, the Court has jurisdiction and may consider whether
Petitioner meets the statutory grounds for relief.
Rule 60(b) motion is a successive habeas motion
“when it ‘seeks vindication of' or
‘advances' one or more claims.”
Franklin, 839 F.3d at 473 (citations omitted).
Asserting a new ground for relief or presenting new evidence
of an already litigated claim constitutes a second habeas
motion. Moreland, 813 F.3d at 323. In contrast, a
defendant is not pursuing a successive habeas motion if he
“merely asserts that a previous ruling which precluded
a merits determination was in error” such as “a
denial for such reasons as failure to exhaust, procedural
default, or statute-of-limitations bar.”
Gonzalez, 545 U.S. at 542 n.4 (2005).
avers his motion seeks to amend his § 2255
motion and is not a successive motion. The undersigned
disagrees. Because Petitioner seeks to assert a new ground
for relief based on Rehaif, he intends to submit a
successive habeas motion. Franklin, 839 F.3d at 473
(citations and quotations omitted). Accordingly, the Court
has no jurisdiction to consider it.
reliance on Clark v. United States, 764 F.3d 653
(6th Cir. 2014) is unavailing. Specifically, Petitioner draws
to the Court's attention the Sixth Circuit's
indication that “[a] motion to amend is not a second or
successive § 2255 motion when it is filed
before the adjudication of the initial § 2255
motion is complete i.e., before the petitioner has
lost on the merits and exhausted [his] appellate
remedies.” Clark, 746 F.3d at 658. But the
Sixth Circuit sharply limited this language in Clark
by reconciling this claim with its holding in Post v.
Bradshaw, 422 F.3d 419 (6th Cir. 2005):
But the actual facts of Clark are that the motion
was filed before a notice of appeal was filed and before the
time for filing such a notice expired . . . . The actual
holdings of the two cases are consistent with and indeed
require our conclusion that a Rule 60(b) motion or
motion to amend that seeks to raise habeas claims is a second
or successive habeas petition when that motion is filed after
the petitioner has appealed the district court's denial
of his original habeas petition or after the time for the
petitioner to do so has expired.
Moreland, 813 F.3d at 325. The Moreland court
curbed Clark's holding to only apply to a motion
filed before a notice of appeal was filed. Id. In
the instant case, Petitioner did not file the pending motion
until several months after filing a notice of appeal.
Therefore, his petition is outside of Clark's
limited purview. ECF No. 165; ECF No. 159. Because
Petitioner's motion was filed “long after he
appealed the district court's decision denying his
original habeas petition, ...