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Buie v. United States

United States District Court, D. South Carolina, Florence Division

May 10, 2018

Daniel Ray Buie, PETITIONER
v.
United States of America, RESPONDENT

          ORDER

          TERRY L. WOOTEN, CHIEF UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court for consideration of Petitioner Daniel Ray Buie's pro se motion for relief pursuant to Rules 60(b) and (d) of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is denied.

         I. Factual and Procedural History

         Petitioner pled guilty to a drug charge and a § 924(c) charge. He was sentenced as a career offender to 132 months on the drug charge and 60 months consecutive on the gun charge. He filed a direct appeal, and the Fourth Circuit affirmed on April 5, 2011. United States v. Buie, 421 Fed.Appx. 281 (4th Cir. 2011).

         On July 3, 2012, Petitioner timely filed a § 2255 petition asserting various grounds for relief. ECF No. 140. But at a Rule 35(b) hearing, his counsel moved to withdraw the § 2255 petition, assertedly with Petitioner's consent, and the Court granted the motion. See ECF No. 171; Hearing Tr. 2:6-3:8 (Feb. 14, 2013), ECF No. 181. The Court granted the Government's Rule 35(b) motion and reduced his sentence to 100 months on the drug charge and 60 months consecutive on the gun charge. ECF No. 174. He filed a direct appeal, and the Fourth Circuit affirmed on January 27, 2014. United States v. Buie, 552 Fed.Appx. 275 (4th Cir. 2014).

         On September 9, 2015, Petitioner filed a motion entitled “Cause Motion to Re-Instate or Other Appropriate Remedy, ” in which he again challenged his conviction and sentence on various grounds. ECF No. 210. The Court issued an order stating that if he intended to seek relief pursuant to § 2255, then, as required by Local Rule 83.VIII.03, he needed to file his petition on the appropriate forms. ECF No. 212. He then did so. ECF No. 214. In the petition, he argued that he was entitled to relief on several grounds. After briefing, ECF Nos. 218, 222, the Court dismissed the petition as untimely on October 11, 2016, [1] ECF No. 229. He did not file a direct appeal.[2]

         On October 2, 2017, over four-and-a-half years after the Rule 35(b) hearing during which the Court granted Petitioner's counsel's motion to withdraw the initial § 2255 petition, he filed the instant motion under Rules 60(b) and (d), asking the Court to vacate its order granting the oral motion to withdraw that petition. The basis of his motion is that counsel did not have his consent to withdraw the petition. See ECF No. 241 at 3.

         II. Rule 60(b)

         Rule 60(b) provides as follows:

         Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(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 ...

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