United States District Court, D. Maryland, Southern Division
MEMORANDUM AND ORDER
Paulwriimm United States District Judge
August 1, 2013, Petitioner Kevin Mormon was convicted by a
federal jury of conspiracy to distribute at least 280 grams
of cocaine base, for which he is currently serving a 25-year
sentence. See Verdict 1-2, ECF No. 42; J. 2, ECF No.
55. On November 12, 2014, the Fourth Circuit affirmed this
Court's judgement. See 4th Cir. J. 1, ECF No.
78. The Supreme Court denied certiorari on May 4, 2015.
See Mormon v. United States, 135 S.Ct. 2069 (2015)
Mr. Mormon filed a Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255. See Mot.
to Vacate 3, ECF No. 85. The motion alleged a Sixth Amendment
violation, a Confrontation Clause violation, ineffective
assistance of counsel, and prosecutorial misconduct. See
Id. at 7, 9, 10, 23. On July 11, 2017, I denied Mr.
Mormon's motion, in part because the Court lacked
jurisdiction to review issues that Mr. Mormon had previously
litigated on direct appeal or failed to do so and did not
meet the § 2255 cause-and-prejudice standard.
See Mem. Op. 2-3, ECF No. 112. Moreover, I found
that his ineffective assistance of counsel claim fell short
of the standard elucidated in Strickland v. Washington.
See Id. The Fourth Circuit affirmed the denial several
months later. See Fourth Cir. J 1, ECF No. 121. The
Supreme Court denied certiorari on April 16, 2018. See
Mormon v. United States, 138 S.Ct. 1568 (2018) (mem.).
Mormon, who is representing himself, filed a Motion for
Reconsideration under Rule 60(b) of the Federal Rules of
Civil Procedure on December 26, 2018. See Mot. for
Recons. 1, ECF No. 127. Mr. Mormon argues that this
Court's proceedings were defective when it dismissed his
§ 2255 motion. See Id. He raises four issues to
support this claim: (1) the Court mistakenly applied the
wrong legal standard, which should have been the deliberate
elicitation standard under Massiah; (2) the
government misrepresented the issue, facts, and law; (3) the
Court applied the wrong legal standard in a manner
inconsistent with due process of law; and (4) the Court
failed to reach the merits by applying the wrong legal
standard. See Id. at 6-9. He seeks relief from final
judgment and appointment of counsel to assist him in further
proceeding.. See Id. at 1.
threshold issue that I must first decide is one of
jurisdiction. In this circuit, a district court 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.'" United States v. Winestock,
340 F.3d 200, 206 (4th Cir. 2003). A successive S 2255 motion
requires a certificate of appealability from the appropriate
Court of Appeals before proceeding. 28 U.S.C. S 2255(h).
Without certification, the district court does not have
jurisdiction to decide the motion. See Winestock,
340 F.3d at 205 (citing Evans v. Smith, 220 F.3d
306, 325 (4th Cir. 2000)). When a district court determines a
Rule 60(b) motion is a successive application, it must
dismiss the motion for lack of jurisdiction or transfer it to
the Fourth Circuit to perform its gatekeeping function under
§ 2244(b)(3). See Id. at 207.
60(b) provides relief from final judgement when one or more
of the following occurred:
(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); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Here, Mr. Mormon argues the existence
of (1) mistake, inadvertence, surprise, or excusable neglect;
(3) fraud..., misrepresentation, or misconduct by an opposing
party; (4) the judgment is void; and (6) any other reason
that justifies relief. See Mot. for Recons. 6-9.
motion directly attacking the prisoner's conviction or
sentence will usually amount to a successive
application"" Winestock, 340 F.3d at 207.
Mr. Mormon's motion, though styled as a motion for
reconsideration under Rule 60(b), is just that. Virtually all
of his arguments previously appeared in his motion to vacate.
And while Mr. Mormon alleges that the Government mispresented
the law in its arguments to the Court, see Mot. for
Recons. 7, he has not raised any allegations suggestive of a
fraud on the habeas court, see Gonzalez v. Crosby,
545 U.S. 524, 532 n.5 (2005). The parties aired their
disagreement over this point of law in the previous
proceeding,, and the Court resolved the issue in its
Memorandum Opinion, explaining: "An accused who is
admonished with the [Miranda] warnings ... has been
sufficiently apprised of the nature of his Sixth Amendment
rights, and of the consequences of abandoning those rights,
so that his waiver on this basis will be considered a knowing
and intelligent one." See Mem. Op. 6 (quoting
Patterson v. Illinois, 487 U.S. 285, 296 (1988)).
Mr. Mormon cannot now relitigate this issue under Rule 60(b).
See Winestock, 340 F.3d at 207 (citing Eberhardt
v. Integrated Design & Constr., Inc., 167 F.3d861.,
I find Mr. Mormon's motion for reconsideration is
tantamount to a repetitive or successive § 2255 motion,
I dismiss the motion for lack of jurisdiction.
is no Sixth Amendment right to counsel to pursue a petition
for habeas corpus. See Pennsylvania v. Finely, 481
U.S. 551, 555 (1987). A court may provide counsel for an
indigent prisoner pursuing a petition for habeas corpus if
"the court determines that the interests of justice so
require." 18 U.S.C. 9 3006A(2)(B.. Rule 6(a) of the
Rules Governing Section 2255 Cases provides that a court must
appoint counsel if it is "necessary for effective
discovery." Rule 8(c) mandates that counsel be appointed
only "[i]f an evidentiary hearing is warranted."
Mr. Mormon has adequately articulated his claims, and the
issue presented is not unduly complex. At this stage of the
proceeding,, it does not appear that an evidentiary ...