United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE.
Brown, pro se, pursuant to Federal Rule of Civil
Procedure 60(b), has filed a Motion for Relief from Judgment
requesting that his conviction be vacated. ECF No. 108. The
Court has considered the Motion and the Government's
Opposition. For the reasons that follow, the Motion is
FACTUAL AND PROCEDURAL BACKGROUND
April 19, 2006, Brown pled guilty to a single count of
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). At sentencing, he sought to withdraw
his guilty plea. The Court denied his request and sentenced
him to 48 months imprisonment followed by two years of
supervised release. The Fourth Circuit affirmed the judgment
and sentence on appeal. United States v. Brown, 261
Fed. App'x. 494 (4th Cir. 2008).
subsequently filed a 28 U.S.C. § 2255 Motion to Vacate
his sentence, which the Court also denied. ECF Nos. 29, 35.
Brown's appeal of the denial of this motion was dismissed
by the Fourth Circuit, and his petition for writ of
certiorari to the Supreme Court denied.
on supervised release following his incarceration, the Court
found Brown in violation of the term of his supervised
release that prohibited him from having unsupervised contact
with minor children without the permission of the Probation
Officer. As a result, the Court revoked his supervised
release and sentenced him to 24 months of incarceration,
followed by 10 years of supervised release. Brown appealed,
challenging, among other things, the Court's authority to
impose a 10 year term of supervised release. On appeal, the
Government agreed with Brown's arguments and, based on a
joint motion by the parties, the Fourth Circuit remanded the
case to this Court for re-sentencing. On remand, the Court
re-sentenced Brown to 24 months of imprisonment with no
supervised release term to follow.
November 15, 2012, while his appeal of the sentence imposed
for the supervised release violation was still pending,
Brown, pro se, filed a second § 2255 motion,
despite being represented by counsel. ECF No. 78. The Court
dismissed the second petition on February 12, 2014, for lack
of jurisdiction because Brown had not received the required
certification from the Fourth Circuit to file a successive
habeas petition. ECF No. 105.
September 30, 2014, Brown filed the present Motion. ECF No.
108. He argues that Federal Rule of Civil Procedure 60(b)
provides him a remedy because he has discovered “new
evidence” that shows his counsel was ineffective in
advising him regarding his plea. On August 1, 2017, the
Government filed its opposition. ECF No. 111. Brown, who is
no longer in custody or on supervised release, has not
replied. The Court DENIES the Motion.
Rule of Civil Procedure 60(b) provides for relief from a
final judgment for: “(1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence
that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
[or] (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing
party.” Fed.R.Civ.P. 60(b)(1)-(3). “A motion
under Rule 60(b) must be made within a reasonable time-and
for reasons (1), (2), and (3) no more than a year after the
entry of the judgment or order or the date of the
proceeding.” Fed.R.Civ.P. 60(c)(1).
Rule 60(b) may not be used as a vehicle to circumvent the
rule prohibiting successive § 2255 petitions. Absent
authorization from the Fourth Circuit, a defendant's
successive § 2255 motion is barred and a district court
must deny the motion for lack of jurisdiction. See
28 U.S.C. § 2255(h); United States v.
Winestock, 340 F.3d 200, 205 (4th Cir. 2003). Rule 60(b)
motions should be construed as successive applications for
relief under § 2255 when it appears that a defendant is
attempting to file the “functional equivalent” of
a § 2255 petition. See Winestock, 340 F.3d at
206 (“We now hold that district courts must
treat Rule 60(b) motions as successive collateral review
applications when failing to do so would allow the applicant
to evade the bar against relitigation of claims presented in
a prior application or the bar against litigation of claims
not presented in a prior application.”). Thus, if the
Court construes a Rule 60(b) motion as a successive §
2255 petition filed without leave from the Fourth Circuit, it
must deny the claims without reaching the merits.
Brown's Motion for Relief
Government suggests, Brown's Motion is undoubtedly the
functional equivalent of a successive § 2255
petition. He raises the same arguments from his
previous § 2255 motions in an attempt to relitigate his
conviction and sentence. He characterizes his claim that he
was misinformed during plea negotiations as to the maximum
penalty for his crime under 18 U.S.C. § 2252A(a)(5)(B)
as “new evidence.” However, as he states in his
own pleading, the true maximum penalty was information
“readily available” at the time. ECF No. 108 at
4. This is not the type of “new evidence”
contemplated by the Rule. Similarly, it does not qualify as
mistake or fraud. Rather, Brown is merely using Rule 60(b)
language to reframe his previously unsuccessful ineffective
assistance of counsel ...