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United States v. Weekly

United States District Court, W.D. Arkansas, Texarkana Division

May 15, 2018

UNITED STATES OF AMERICA RESPONDENT
v.
ALVIN WEEKLY MOVANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE

         Movant is Alvin Weekly (“Weekly”) who is proceeding pro se. On November 30, 2017, Weekly filed a Petition for Relief of Sentence Pursuant to Rule 60(b) to Correct the Procedural Defect and Ineffective Assistance of Counsel and Unlawful Enhancement in Light of Supreme Court Ruling of Buck v. Davis. ECF No. 1820. After being directed to respond, the Government filed a response to this Motion. ECF No. 1858.

         The Motion was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case. The Court has reviewed the Motion and the response; and based upon that review, the Court recommends this Motion be DENIED.

         1. Procedural Background:[1]

         On July 11, 2014, this Court entered a Report and Recommendation regarding Weekly's first § 2255 Motion. ECF No. 1336. In that Report and Recommendation, the Court summarized the procedural background of Weekly's case, and the Court will not restate it here. Id.

         After that Report and Recommendation was entered, Weekly then filed a Motion for a Certificate of Appealability. ECF No. 1527. That Motion was denied. Id. Despite not obtaining a certificate of appealability, Weekly still filed an appeal. ECF No. 1646. This appeal was denied. ECF No. 1646.

         On December 15, 2015, Weekly filed his Petition with the United States Court of Appeals for the Eighth Circuit seeking permission to file a second or successive motion pursuant to § 2255. ECF No. 1676. The Eighth Circuit denied this request on March 23, 2016. ECF No. 1677.

         Weekly then filed a second application to file a successive § 2255 Motion with the Eighth Circuit on June 7, 2016. ECF No. 1717. The Eighth Circuit entered a mandate denying that request on March 30, 2017. ECF No. 1782.

         Now, Weekly has filed a Petition for Relief of Sentence Pursuant to Rule 60(b). ECF No. 1820. With this Petition, Weekly specifically claims this Motion is “not to be construed” as a § 2255 Motion. Id. After Weekly filed this Petition, the Court directed the Government to respond and specifically address whether this Petition should be construed as a successive motion pursuant to § 2255, whether this Petition is timely, and whether Buck v. Davis, 137 S.Ct. 759 (2017) has any application to this case. ECF No. 1840. On March 29, 2018, the Government responded to this Motion as directed and argues this Petition should be denied in its entirety. ECF No. 1858. The Court finds this Motion is now ripe for consideration.

         2.Applicable Law:

         A § 2255 motion is fundamentally different from a direct appeal. The Court will not reconsider an issue, which was decided on direct appeal, in a motion to vacate pursuant to § 2255. See United States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005); Dall v. United States, 957 F.2d 571, 572 (8th Cir.1992) (“Claims which were raised and decided on direct appeal cannot be re-litigated on a motion to vacate pursuant to 28 U.S.C. § 2255 .”).

         “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

         Furthermore, any second or successive motion pursuant to § 2255 must be certified by the appropriate Court of Appeals, prior to filing in District Court. 28 U.S.C. § 2255(h). A second or successive § 2255 motion must be certified pursuant to 28 U.S.C. § 2244 by a panel of the appropriate court of appeals to contain either:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would ...

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