United States District Court, W.D. Arkansas, El Dorado Division
O. HICKEY UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation filed May 15,
2018, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 1868). Judge Bryant recommends that the Court deny
Petitioner Alvin Weekly's Petition for Relief of Sentence
Pursuant to Rule 60(b). (ECF No. 1820). Petitioner has filed
objections. (ECF No. 1873). The Court finds the matter ripe
September 14, 2011, Petitioner was named in 6 counts of a 190
count Indictment filed in the United States District Court
for the Western District of Arkansas. The Indictment charged
Petitioner with one count of conspiracy to distribute cocaine
base, four counts of distribution of cocaine base, and one
count of distribution of cocaine base within 1, 000 feet of a
public school. On March 2, 2012, pursuant to a written plea
agreement, Petitioner entered a plea of guilty to the charge
of distribution of cocaine base within 1, 000 feet of a
public school. On November 1, 2012, the Court sentenced
Petitioner to 140 months of imprisonment; 6 years of
supervised release; and a $100 special assessment. (ECF No.
967). The Court also dismissed the remaining counts against
Petitioner. On November 9, 2012, Petitioner filed a timely
notice of appeal. (ECF No. 971). On December 7, 2012,
Petitioner filed a motion to dismiss his appeal, and on
December 14, 2012, the Eighth Circuit entered a mandate
granting the same.
October 9, 2013, Petitioner filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. (ECF No. 1275). While maintaining that he was not
contesting his guilty plea, Petitioner's section 2255
motion sought to vacate his sentence on four grounds of
ineffective assistance of counsel. On July 11, 2014, Judge
Bryant issued a Report and Recommendation, recommending
denial of Petitioner's section 2255 motion. On April 30,
2015, the Court adopted Judge Bryant's Report and
Recommendation and denied Petitioner's section 2255
motion. (ECF No. 1518). Petitioner appealed, and on October
28, 2015, the Eighth Circuit dismissed Petitioner's
appeal. (ECF No. 1646).
7, 2016, Petitioner filed an application seeking the Eighth
Circuit's leave to file a second or successive section
2255 motion based on Johnson v. United States, 135
S.Ct. 2551 (2015). On March 30, 2017, the Eighth Circuit
denied the application.
November 30, 2017, Petitioner filed a motion to correct
sentence under Rule 60(b). Petitioner argues that, pursuant
to Buck v. Davis, 137 S.Ct. 759 (2017), Rule 60(b)
gives the Court jurisdiction to reopen cases in extraordinary
circumstances to challenge procedural defects in a prior
habeas proceeding. Petitioner argues that new
information exists in the form of a Google Maps printout,
showing that he did not commit the offense of distributing
cocaine base within 1, 000 feet of a public school.
Petitioner contends that procedural defects occurred during
his sentencing because the street that the written plea
agreement and the presentence report stated Petitioner dealt
cocaine base on was not 1, 000 feet from a public school, and
thus the Court based his sentence on inaccurate information.
Petitioner concludes by asking the Court to vacate his
sentence and grant him an evidentiary hearing so that he may
present evidence that he is actually innocent of the crime of
distributing cocaine base within 1, 000 feet of a public
March 29, 2018, the government filed a response to the Rule
60(b) motion. The government argues that, although the motion
is styled as a Rule 60(b) motion, it is actually a second or
successive section 2255 motion, and thus should be denied
because Petitioner did not seek approval from the Eighth
Circuit before filing the motion. The government also argues
alternatively that Petitioner's reliance on Rule 60(b) is
misplaced because Rule 60(b) cannot be used to attack an
underlying criminal sentence.
15, 2018, Judge Bryant issued the instant Report and
Recommendation. (ECF No. 1868). Judge Bryant recommends that
the Court deny Petitioner's Rule 60(b) motion.
Specifically, Judge Bryant finds that the motion is a second
or successive section 2255 motion because it seeks to vacate
his criminal sentence. Accordingly, Judge Bryant reasons that
Petitioner's motion is barred because he did not obtain
leave from the Eighth Circuit prior to filing it. Judge
Bryant finds alternatively that, even if the motion is
construed as a Rule 60(b) motion, it nonetheless fails
because: (1) Rule 60(b) does not apply to criminal cases and
(2) because the facts of this case do not rise to the level
of “extraordinary circumstances” contemplated by
Buck v. Davis to warrant reopening this case and
granting Petitioner relief from judgment. Judge Bryant
concludes by recommending that the Court deny
Petitioner's motion and that no certificate of
appealability should be issued.
29, 2018, Petitioner filed objections to the Report and
Recommendation. Pursuant to 28 U.S.C. § 646(b)(1), the
Court will conduct a de novo review of all issues
related to Petitioner's specific objections.
objects to Judge Bryant's finding that Rule 60(b) does
not apply to criminal cases and that the facts of this case
do not rise to the “extraordinary circumstances”
contemplated by Buck v. Davis to warrant reopening
this case and granting Petitioner relief from judgment.
Court notes that Petitioner does not object to Judge
Bryant's finding that the Rule 60(b) motion is a second
or successive section 2255 motion. The Court agrees with
Judge Bryant that Petitioner's motion is a second or
successive section 2255 motion.
“second or successive” section 2255 motion may
not be filed absent certification by the Eighth Circuit,
thereby authorizing the district court to consider the second
or successive motion. See 28 U.S.C. §
2244(b)(3)(a); 28 U.S.C. § 2255(h). An inmate may not
bypass this requirement by purporting to invoke some other
procedure, such as a Rule 60(b) motion. See United States
v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005);
Boyd v. United States, 304 F.3d 813, 814 (8th Cir.
2002) (per curiam). A Rule 60(b) motion is not treated as a
second or successive section 2255 motion if it does not raise
a merits challenge to the resolution of a claim in a ...