United States District Court, W.D. Arkansas, Texarkana Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
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.
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
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.
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.
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.
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.
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.
§ 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 .”).
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).
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 ...