IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
April 21, 2010
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Lowell A. Reed, Jr., S.J.
MEMORANDUM AND ORDER
AND NOW, this 21st day of April, 2010, upon consideration of the pro se motion under Federal Rule of Civil Procedure 60(b) filed by Timothy Walker ("Walker") (Doc. No. 255) and the relevant portions of the official record in this case, the court makes the following findings and conclusions:
1. In November 1996, Walker was convicted by a jury of one count of conspiracy to possess with intent to distribute cocaine, and one count of attempted possession with intent to distribute cocaine. He was sentenced by this court to 480 months in prison to be followed by a ten year term of supervised release. On February 5, 1998, the United States Court of Appeals for the Third Circuit ("Third Circuit") affirmed Walker's conviction and sentence in an unpublished opinion. (Doc. No. 224); United States v. Walker, C.A. No. 97-1101 (3d Cir. Feb. 5, 1998).
2. On February 4, 1999, Walker filed a pro se motion under 28 U.S.C. § 2255 ("§ 2255 motion") to vacate, set aside or correct sentence. (Doc. No. 226). On April 4, 2000, this court entered an order denying Walker's § 2255 motion without a hearing. (Doc. No. 232).
3. On March 13, 2001, the Third Circuit entered an order that denied Walker's request for a certificate of appealability relating to the April 4, 2000 order of this court because Walker did not make a substantial showing of the denial of a constitutional right. (Doc. No. 243); In re Timothy Walker, C.A. No. 00-1373 (3d Cir. March 13, 2001).
4. On September 13, 2000, Walker filed a motion in this court pursuant to Rule 60(b) of the Federal Rule of Civil Procedure seeking to litigate two sentencing issues. (Doc. No. 238). I concluded that Rule 60(b) could not be used to circumvent the procedural requirements for second and successive § 2255 motions. Because Walker had not sought or obtained permission to file the second or successive § 2255 motion, the motion was dismissed on May 21, 2001.*fn1 (Doc. No. 244).
5. On November 30, 2005, the Third Circuit denied defendant's application to file a second or successive motion under § 2255 without prejudice.*fn2 (Doc. No. 249).
6. On February 1, 2010, Walker filed the instant Rule 60(b) motion alleging that the Supreme Court rulings in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers v. United States, - U.S. - , 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), apply retroactively and render his prior predicate state court conviction for third degree robbery ineligible for consideration as a "crime of violence" under the Sentencing Guidelines.*fn3 (Doc. No. 255). As such, Walker claims that his classification as a career offender under Sentencing Guidelines § 4B1.1 was improper, thereby invalidating the sentence imposed upon him in 1997. Id.
7. On March 15, 2010, Walker filed a "Second or Successive Application for Relief" under § 2255 in the Third Circuit.*fn4 In re Timothy Walker, C.A. No. 10-1705. That application is currently pending.
8. Rule 60(b) may not be used to circumvent the restrictions that Congress has placed on second or successive habeas petitions. Gonzalez v. Crosby, 545 U.S. 524, 531-32, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (holding that a Rule 60(b) motion will be considered a de facto habeas petition if it attacks the court's resolution of a claim on the merits). Because Walker seeks to challenge the sentence stemming from his federal conviction, the instant motion is properly construed as a § 2255 petition.
9. A second or successive § 2255 motion cannot be filed in the district court unless the petitioner has first obtained an order from the court of appeals authorizing the district court to consider the motion. 28 U.S.C. §§ 2244(b)(3)(A) and 2255(h); Robinson v. Johnson, 313 F.3d 128, 139-40 (3d Cir. 2002). As of the date of this Memorandum and Order, Walker has not obtained leave to file a second or successive motion. When a second or successive § 2255 motion is erroneously filed with the district court, "the district court's only option is to dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631." Robinson, 313 F.3d at 139. Walker currently has an application pending in the Third Circuit for leave to file a second or successive § 2255 motion. Because the application before the Third Circuit is the proper vehicle for addressing Walker's claims at this time, the current motion will be dismissed with prejudice.*fn5
10. This Court concludes that Walker is not entitled to have his new collateral claims considered under Rule 60(b). He is not entitled to review for this successive motion under the rules governing habeas corpus review, unless he first obtains a certification from the Court of Appeals permitting him to file a successive § 2255 motion.
Based upon the foregoing, it is hereby ORDERED that Timothy Walker's pro se motion under Federal Rule of Civil Procedure 60(b) (Document No. 255), is DISMISSED WITH PREJUDICE.