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Malone v. United States

United States District Court, N.D. Ohio, Eastern Division

December 23, 2019

RYAN D. MALONE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF OPINION AND ORDER (RESOLVING ECF NO. 165)

          Benita Y. Pearson United States District Judge.

         Pending is Petitioner's motion for relief from judgment.[1] 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.

         I. Introduction

         Petitioner 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.

         Petitioner 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.

         After 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.[2] 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.

         II. Discussion

         A. Successive Habeas Motion

         Under 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.

         A 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).

         Petitioner 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.

         Petitioner's 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.[3] 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, ...


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