United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge
se defendant, Jeffrey Schmutzler, confined at the Federal
Medical Center-Devens, Ayer, Massachusetts, pled guilty to
receiving child pornography in violation of 18 U.S.C. §
2252A(a)(2). He has filed a motion under Fed.R.Civ.P.
60(b)(6) seeking relief from the order of April 27, 2015.
That order denied Defendant's motion under 28 U.S.C.
§ 2255 challenging his conviction and sentence.
conclude the Rule 60(b)(6) motion is really a second or
successive 2255 motion that we lack jurisdiction to consider.
We will therefore dismiss it. Additionally, we observe that
even if it were a proper Rule 60(b)(6) motion, we would deny
it because it lacks merit.
April 2013, Defendant was named in a two-count indictment.
Count I charged him with knowingly receiving child
pornography that had been mailed, shipped and transported in
and affecting interstate and foreign commerce by any means,
including by computer, in violation of 18 U.S.C. §
2252A(a)(2) and (b). Count II charged him with possession of
material containing images of child pornography, in violation
of 18 U.S.C. § 2252A(a)(5)(B).
2013, Defendant pled guilty to Count I. In August 2014,
Defendant was sentenced to 108 months' imprisonment. In
February 2015, the Third Circuit affirmed his conviction and
sentence on direct appeal. United States v.
Schmutzler, 602 F.App'x 871 (3d Cir.
2015)(nonprecedential). In April 2015, we denied his 28
U.S.C. § 2255 motion. United States v.
Schmutzler, 2015 WL 1912608 (M.D. Pa. April 27, 2015).
In December 2015, the Third Circuit denied a certificate of
appealability on Defendant's appeal of our order denying
the 2255 motion. United States v. Schmutzler, No.
15-2462 (3d Cir. Dec. 21, 2015). In October 2016, the Third
Circuit denied Defendant's first application to file a
second or successive 2255 motion. In re Schmutzler,
No. 16-3817 (3d Cir. Oct. 27, 2016). In January 2017, the
Third Circuit denied Defendant's second application to
file a second or successive 2255 motion. In re
Schmutzler, No. 17-1001 (3d Cir. Jan. 27, 2017). In
addition, Defendant filed two unsuccessful 28 U.S.C. §
2241 petitions in the United States District Court for the
District of Massachusetts challenging his conviction. See
Schmutzler v. Grondolsky, No. 16-CV-12308, 2016 WL
7209667 (D. Mass. Sept. 12, 2016).
argues he is entitled to relief under Rule 60(b)(6) because
we failed to adjudicate ground four of his 2255 motion. He
asserts that he raised in ground four jurisdictional
arguments based on statutory and Tenth Amendment analyses
found in Bond v. United States, ___ U.S.___, 134
S.Ct. 2077, 189 L.Ed.2d 1 (2014). Defendant contends that he
argued, based on Bond, that section 2252A(a)(2) does
not reach his conduct here, which was wholly intrastate, and
which is left to the primary responsibility of the states to
regulate. Defendant maintains that, instead of deciding this
claim, we mistakenly adjudicated one based on selective
prosecution. He therefore argues that he may rely on Rule
60(b)(6) to have ground four decided on the merits, a ground
which he believes makes him legally innocent of the federal
charges and one which indicates we lacked subject-matter
jurisdiction over the case.
2555's gatekeeping provision, 28 U.S.C. § 2255(h),
deprives us of jurisdiction to consider a second or
successive 2255 motion unless the Third Circuit authorizes
the motion. See Pelullo v. United States, 352
F.App'x 620, 625 (3d Cir. 2009)(nonprecedential).
Defendant has filed a Rule 60(b)(6) motion seeking relief
from the order denying his 2255 motion. Rule 60(b)(6) allows
relief from a judgment for “any other reason that
justifies relief.” It is the catchall provision of Rule
60(b). While Rule 60(b) has an
“unquestionably valid role to play in habeas cases,
” Gonzalez v. Crosby, 545 U.S. 524, 534, 125
S.Ct. 2641, 2649, 162 L.Ed.2d 480 (2005), a motion under Rule
60(b) will be treated as a 2255 motion if in substance it
presents a claim for relief from the criminal judgment.
Id. at 531-32, 125 S.Ct. at 2647-48. This will happen
if the Rule 60(b) motion (1) presents a new claim for relief
from the criminal judgment or (2) presents a claim that the
court's resolution of a previous claim in section 2255
proceedings attacking the criminal judgment was erroneous.
Id. at 532, 125 S.Ct. at 2648.
Rule 60(b)(6) may be invoked if the defendant is attempting
to reopen his 2255 proceedings so that the merits of his 2255
motion may be determined in the first instance. See
Michael v. Wetzel, 570 F.App'x 176, 179-80 (3d Cir.
2014) (nonprecedential)(involving a 28 U.S.C. § 2254
petition)(“The thrust of Gonzalez is that a
Rule 60(b) motion challenging a non-merits aspect of habeas
proceedings is not a second or successive § 2254
petition.”). It also appears that Rule 60(b)(6) may be
invoked if the defendant is asserting that the court failed
to address one of the claims in his 2255 motion. See
Peach v. United States, 468 F.3d 1269, 1271 (10th Cir.
2006)(a Rule 60(b)(6) motion that challenges the district
court's failure to decide one of the defendant's
claims in his 2255 motion is a valid Rule 60(b)(6) motion,
not a second or successive 2255 motion).
difficulty for Defendant is that we did not misconstrue
ground four. We did properly understand it as part of a
selective prosecution claim. Although Defendant cited Bond in
support, the essence of ground four is that, based on
federalism, the federal prosecutor should have deferred to
the state for Defendant's prosecution. (See Doc. 72, ECF
p. 17, 2255 motion, ground four; Doc. 7-6, brief on ground
four; Doc. 93-1, ECF p. 19, ground four). We adjudicated that
claim as part of the selective prosecution claim.
current claim is a new one. Defendant no longer simply argues
that federal authorities should have deferred to state ones,
but asserts that the federal statute does not reach his
conduct, and phrasing the argument in terms of jurisdiction.
Under Gonzalez, this makes Defendant's motion a 2255 one.
Since Defendant has already had a 2255 motion adjudicated, as
we noted above, we lack jurisdiction to consider his ...