United States District Court, D. Maryland
RICHARD D. BENNETI UNITED STATES DISTRICT JUDGE
March 19, 2018, Shelly Wayne Martin filed this Motion for
Relief from Judgment pursuant to Fed.R.Civ.P. 60(b). (ECF No.
819). The Motion will be treated as a Motion to Vacate, Set
Aside or Correct Sentence under 28 U.S.C. 92255, and
DISMISSED without prejudice.
was convicted of two counts of racketeering conspiracy after
a 36 day jury trial. He was sentenced to concurrent 400 month
sentences by Judge Andre M. Davis on March 30, 2009.  On appeal,
his conviction was affirmed by the United States Court of
Appeals for the Fourth Circuit. Uniled Slales v.
Marlin, CA No. 09-4359 (4th Cir. 2011).
September 27, 201,, Martin filed a Motion to Vacate under 28
U.S.C. 92255, which was denied on the merits by Judge J.
Frederick Motz. Marlin v. United Slates, Civil
Action No. JFM-12-2890 (D. Md. 2013). The Fourth Circuit
denied a Certificate of Appealability and dismissed Martinss
appeal. United Slales v. Marlin. CA4 No. 13-6697
(4th Cir. 2013). Martin later filed a "Motion under the
Declaratory Judgment Act of 28 U.S.C. 92201, "
collaterally attacking his sentence, and it was dismissed
without prejudice as an unauthorized successive S2255 Motion.
Martin v. United States, Civil Action No. JFM-16-109
(D. Md. 2016). 
motion filed under Federal Rule of Civil Procedure 60(b) that
"seeks to add a new ground for relief or "attacks
the federal court's previous resolution of a claim on the
merits" is in fact a second or successive petition for
writ of habeas corpus. See Gonzales v. Crosby. 545
U.S. 524, 532, (2005.. In United States v.
Winestock, 340 F.3d 200, 206-07 (4th Cir. 2003), the
Fourth Circuit distinguished between a Rule 60(b) motion and
a 28 U.S.C. S 2255 motion, explaining that a motion directly
attacking the prisoner's conviction or sentence will
usually amount to a successive application, while a motion
seeking a remedy for some defect in the collateral review
process will generally be deemed a proper motion to
reconsider. ld. at 207. A petitioner may not evade
the procedural requiremenss for successive S 2255 motions by
attaching other titles to his filings. See Calderon v.
Thompson, 523 U.S. 538, 553 (1998); see also Castro
v. United States, 540 U.S. 375, 382-83 (2003) (noting a
court may recharacteriee a pro se litigantss pleading to
"create a better correspondenee between the substance of
the claim and its underlying legal basis").
"Federal courts sometimes will ignore the legal label
that a pro se litigant attaches to a motion and
recharacterize the motion in order to place it within a
different legal category." Castro, 540 U.S. at
Martin disputes the guidelines that were applied to calculate
his sentences. He asserts: ''Despite the [j]ury
verdict, the Court applied the U.S.S.G S 2El.l(a) (2) cross
reference to the 2A1.1 guideline for first degree murder
which place[d) the Movant's advisory guideline range to
43, which is significanlly higher than the guideline range of
approximately 34 which he would face for the drug quantities
found by the jury." (ECF No. 819 at 5). But for the
application of the "g 2E1I1(a) (2) cross reference to
the movant would not have been subjected to the advisory
guideline range that calls for up to life
imprisonment." (ECF No. 819 at 6).
Martin asserts that in light of Nelson v. Colorado,
137 S.Ct. 1249, 1252 (April 19, 2017), "and its
Constitutional directive that a defendant has the Right to be
presumed innocent absent a finding of guilt, the Judgment
whereby the movant is sentenced to four hundred (400) months
imprisonment should be vacated." (ECF No. 819 at 6).
Nelson, the Supreme Court considered whether the
State is required to refund fees, court costs and restitution
exacted from the defendant as a consequence of conviction
after that conviction is invalidated and it is determined no
trial will occur. [d. The Court concluded that a
Colorado state law violated due process where that Jaw
required defendanss whose convictions have been reversed or
vacated to additionally prove their innocence in a subsequent
civil proceeding by clear and convincing evidence in order to
obtain a refund of ftinds paid to the state, including
restitution payments. Nelson, 137 S.Ct. at 125-58.
to Martinss assertions, the presumption of innocence is not a
newly amiounced substantive rule of law. (ECF No. 819 at
7-8), It is beyond argument that the presumpiion of a
defendant's innocence at trial is a fundamental pillar of
criminal law in this country. Taylor v. Kentucky.
436 U.S. 478, 483 (1978), quoting Coffm v United
States, 156 U.S. 432, 453 (1895) ("The principle
that there is a presumption of innocence in favor of the
accused is the undoubted law, axiomaiic and elementary, and
its enforcement lies at the foundation of the administration
of our criminal law."). The remaining issues addressed
in Nelson have no application to Martinss sentence
MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
styled as a Rule 60(b) Motion, it is clear that Martm is
challenging the legality of his federal criminal sentence,
not the collateral review process. Accordingly, the Motion is
properly construed as a successive S 2255 petition, rather
than a Rule 60(b) motion. As a successive S 2255 motion, it
may not be considered by this Court without authorizaiion
from the United States Court of Appeals for the Fourth
Circuit. See 28 U.S.C. SS 2244(b)(3)(A), 2255; In re
Vial, 115 F.3d 1192, 1197-98 (4th Cir. 1997) (en
banc). Martin has not received the proper certification
from the Fourth Circuit Court of Appeals. Consequently, this
Court may not consider the merits of the claim.
RULE 60 (b)
this Court were to consider Martinss claims under Rule 60(b),
they would prove unavailing. To support a motion for relief
under Rule 60(b), Martin must show "timelines,, a
meritorious defense, a lack of unfair prejudice to the
opposing party, and exceptional circumstances." Hale
v. Belton Assoc, Inc., 305 Fed.Appx. 987, 988 (4th Cir.
2009) (quoting Dowell v. State Farm Fire & Cas. Auto.
Ins. Co.,993 F.2d 46, 48 (4th Cir. 1993)). He must then
show reason to justify relief. See Fed. R. Civ. P.
60(b)(6). As the moving party, he "must clearly
establish the grounds ... to the satisfaction of the district
court, " and those grounds "must be clearly
substantiated by adequate proof." In re
Burnley,988 F.2d 1, 3 (4th Cir. 1992) (citations
omitted). Rule 60(b) provides a remedy that "is
extraordinary and is only to be invoked upon a showing of