United States District Court, D. South Carolina, Florence Division
L. WOOTEN, CHIEF UNITED STATES DISTRICT JUDGE.
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.
Factual and Procedural History
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
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.
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,
No. 229. He did not file a direct appeal.
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.
60(b) provides as follows:
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 ...