United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
has filed a motion to vacate the judgment order under Rule
60(b)(6). ECF No. 1747. The Government filed a response in
opposition and a motion to dismiss. ECF Nos. 1751, 1752.
Defendant filed a reply. ECF No. 1756.
Rule of Civil Procedure 60(b)(6) allows for relief from a
final judgment for “any other reason that justifies
relief.” While this catchall reason includes few
textual limitations, its context requires that it may be
invoked in only “extraordinary circumstances”
when the reason for relief from judgment does not fall within
the list of enumerated reasons given in Rule 60(b)(1)-(5).
Aikens v. Ingram, 652 F.3d 496, 500 (4th Cir. 2011).
Therefore, a 60(b)(6) motion must be filed on “just
terms, ” within “a reasonable time, ” and
“have a meritorious claim or defense and that the
opposing party not be unfairly prejudiced by having the
judgment set aside.” Id. (citing Nat'l
Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th
Cir. 1993)). A “Rule 60(b) motion that challenges
‘some defect in the integrity of the federal habeas
proceedings' . . . is a true Rule 60(b) motion . .
.” United States v. McRae, 793 F.3d 392, 397
(4th Cir. 2015) (quoting Gonzalez v. Crosby, 545
U.S. 524, 531-32 (2005)).
instance, Defendant asserts a defect in the habeas proceeding
by alleging that the district court failed to address one of
the arguments in her motion under 28 U.S.C. § 2255.
Specifically, Defendant appears to be arguing that the
district court failed to rule on the issue of whether trial
counsel was ineffective for failing to file a motion to
suppress evidence, contending that she raised that issue in
her § 2255 motion and thus the failure to rule
“created a defect in the integrity of the federal
habeas proceedings requiring vacatur of her conviction and
sentence.” ECF No. 1747 at 2.
instant motion does not set forth a valid basis for relief
under Rule 60(b)(6). The Fourth Circuit Court of Appeals has
directed that district courts ascertain and address whether
Rule 60(b) motions are, in reality, second or successive
petitions under § 2255. See United States v.
Winestock, 340 F.3d 200, 206 (4th Cir. 2003). See
also Gonzalez v. Crosby, 545 U.S. 524 (2005). “[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 for reconsideration.” Winestock, 340
F.3d at 207; see also United States v. McRae, 793
F.3d 392, 397 (4th Cir. 2015).
instant motion is, in reality, a second or successive §
2255 motion. She attacks her conviction, arguing the court
erred when it found her attorney was not ineffective when he
failed to file a motion to suppress. ECF No. 1747 at 14. In
addition, she argues the GPS device attached to her car to
monitor her whereabouts constituted a search under the Fourth
Amendment based on United States v. Jones, 565 U.S.
400 (2012), and her attorney was ineffective in failing to
“diligently investigate the source of the GPS
tracking device.” Id. at 15. To the extent
Defendant attempts to utilize a change in the law subsequent
to her conviction as a basis for relief, the motion is a
habeas petition. Gonzalez v. Crosby, 545 U.S. 524,
531-32 (2005) (holding subsequent change in law not a valid
reason for characterizing a motion as one pursuant to Rule
60(b), such an attack is proper in a habeas petition).
Finally, Defendant contends the court failed to respond to
her claim regarding “electronic surveillance for
eavesdropping that was on the taxi she drove” in its
Order denying her original § 2255 motion (ECF No. 1405).
While Defendant attempts to characterize the last argument as
one showing a “defect in the integrity of federal
habeas petitions, ” in order to remove her motion from
the requirements of § 2255 and § 2244, it merely
restates a previous argument already ruled upon by the court.
See ECF No. 1366 at 8, Gov. motion and memo in support,
adopted in court's order at ECF No. 1376 (Defendant
failed to show prejudice by explaining how jury's verdict
would be different if Defendant's counsel had made a
motion to suppress).
these arguments are attacks on her conviction and sentence or
have previously been resolved on the merits.
Winestock, 340 F.3d at 206 (noting Supreme Court has
ratified treating 60(b) motions as successive § 2255
motions, after the enactment of AEDPA, when they present
repetitive claims). As such, her motion is successive and
Defendant has failed to first obtain permission from the
Fourth Circuit Court of Appeals to file a successive §
2255 motion. 28 U.S.C. § 2244(b)(3)(A) (“Before a
second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.”).
Rule 60(b)(6) motion also fails on the merits. Defendant
argues the Jones case determined attaching a GPS
device to a vehicle, and using that device to monitor the
vehicle's movements on public streets, constitutes a
search under the Fourth Amendment, requiring a warrant.
Jones, 565 U.S. at 404. However, it is undisputed
Jones was decided after Defendant's sentencing,
and therefore did not apply to her case. Her attorney would
not have been able to challenge the GPS device based on this
Supreme Court case, which did not yet exist, and therefore
was not ineffective for failing to do so. Likewise, her
appellate counsel was not ineffective for the same reason, as
her appeal was resolved in 2011, before Jones was
decided. A change in law does not render her counsel
ineffective for failing to anticipate it. See Ragland v.
United States, 756 F.3d 597 (8th Cir. 2014) (holding
trial and appellate counsel did not provide ineffective
assistance by failing to anticipate change in law).
even if Defendant could attack her conviction based on the
GPS device, she has failed to show she was prejudiced by it.
The remedy for a warrant less search, as Defendant claims the
GPS tracking device constituted, is to suppress the evidence
seized pursuant to that search. No evidence was seized on
account of the alleged “warrant less”
surveillance; therefore, there would have been nothing to
suppress. Defendant was convicted based on testimony, not due
to evidence found pursuant to the GPS tracking. See ECF No.
1366-1 at 10 (noting no money or luggage was seized during
search, witness testified Defendant told her she delivered
cocaine and transported drug proceeds in a suitcase).
Therefore, there was no prejudice to Defendant even if the
GPS tracker constituted a warrant less search. Accordingly,
there is no “meritorious claim or defense” in
Defendant's Rule 60(b)(6) motion. Aikens, 652
F.3d at 500.
motion is a second or successive § 2255 motion, and
Defendant has failed to obtain permission from the Fourth
Circuit before filing this motion. Therefore, it is dismissed
for lack of jurisdiction.
governing law provides that:
(c)(2) A certificate of appeal ability may issue . . . only
if the applicant has made a substantial showing of the denial