United States District Court, M.D. Pennsylvania
November 18, 2005.
UNITED STATES OF AMERICA, Plaintiff
LLOYD TUCKER, Defendant.
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
Defendant, Lloyd Tucker, was convicted of conspiracy to
distribute crack cocaine. Pursuant to Fed.R.Civ.P. 60(b)(5),
he has filed a pro se motion to reopen the unsuccessful
28 U.S.C. § 2255 motion he filed in April 1997. Defendant argues that our
rejection of the second claim in the 2255 motion was mistaken
because under the Fifth Amendment we did not have the authority
to determine his drug quantity for the purpose of sentencing and
that the jury should have made that determination.
We will dismiss the Rule 60(b)(5) because it is in essence a
second 2255 motion, and we cannot consider second or successive
2255 motions unless the Third Circuit first authorizes us to do
so. II. Background.
In October 1993, Defendant was convicted by a jury of
conspiracy to distribute crack cocaine, and we sentenced him to
262 months' imprisonment. Defendant took a direct appeal, and in
August 1994 the Third Circuit affirmed the conviction. In April
1997, Defendant filed a 28 U.S.C. § 2255 motion. The motion
raised three grounds for relief: (1) the court improperly
instructed the jury on the conspiracy charge so that they were
led to believe that they could find the defendant guilty merely
of a conspiracy to possess cocaine; (2) the defendant should not
have been given an enhancement for being a career offender since
the two prior state convictions used to justify the enhancement
were constitutionally invalid; and (3) defendant's trial counsel
was ineffective for not raising the first two grounds. We denied
the motion and in June 1998, the Third Circuit denied a
certificate of appealability. On November 7, 2005, Defendant
filed the current motion.
Parenthetically, Defendant's current claim has nothing to do
with the second claim presented in his 2255 motion, but that is
immaterial to the disposition of the pending motion, which turns
on whether he can use Rule 60(b)(5) as a way of litigating his
current claim. Defendant cites Gonzalez v. Crosby,
___ U.S. ___, 125 S. Ct. 2641, 162 le2d 480 (2005), in support of doing
so, but that case is actually against him. In Gonzalez, the Supreme
Court held that a Rule 60(b) motion seeking relief from denial of
a 28 U.S.C. § 2254 petition that presents a claim attacking a
state-court criminal conviction is essentially another petition
under 28 U.S.C. § 2254, requiring the permission of the court of
appeals for its filing. This is so even if the petitioner couches
the motion in the language of Rule 60(b), by arguing, for
example, that a change in substantive law after the habeas
proceedings justifies relief. Id. at ___, 125 S.Ct. at 2647-48.
This is essentially what Defendant is attempting here. His Rule
60(b)(5) motion argues that his criminal conviction violated the
Fifth Amendment because the jury did not make the drug-quantity
determination. Although Defendant does not cite the case, relying
instead on In re Winship, 397 U.S. 358, 90 S.Ct. 1068,
25 L.Ed.2d 368 (1970), this is a claim under United States v.
Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a
case decided after Defendant was convicted, ruling that a federal
court had to base its sentence on facts found by the jury and
that the federal sentencing guidelines could only be used in an
advisory role. Gonzalez applies to 2255 motions as well as to
2254 petitions. See United States v. Scott, 414 F.3d 815 (7th
Cir. 2005) (applying Gonzalez to a 2255 motion); United States
v. Terrell, 141 Fed. Appx. 849, 851 (11th Cir. 2005)
(nonprecedential) (explicitly stating that Gonzalez applies to
We will therefore deny the Rule 60(b)(5) motion. We will also
deny a certificate of appealability, based on the above analysis.
However, Defendant is advised that he has the right for sixty
(60) days to appeal our order denying his Rule 60(b) motion,
see 28 U.S.C. § 2253(a), and that our denial of a certificate
of appealability does not prevent him from doing so, as long as
he also seeks a certificate of appealability from the court of
appeals. See Federal Rule of Appellate Procedure 22. ORDER
AND NOW, this 18th day of November, 2005, it is ordered that:
1. Defendant's motion (doc. 169) under
Fed.R.Civ.P. 60(b)(5) is dismissed without prejudice.
2. A certificate of appealability is denied.
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