United States District Court, D. South Carolina, Greenville Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge
matter is before the court on Rashundria J. Burkes'
(âBurkesâ) pro se motion for relief from judgment pursuant to
Rule 60(b)(6) of the Federal Rules of Civil Procedure.
instant motion, Burkes argues that the court must vacate her
sentence because the “court erred in its application of
the guidelines and in the computation of her sentence.”
(Rule 60 Mot. 10, ECF No. 1018). The United States Court of
Appeals for the Fourth Circuit has admonished the court to be
watchful and “distinguish a proper Rule 60(b) motion
from a successive [motion pursuant to 28 U.S.C. § 2255]
¶ 60(b)'s clothing.” United States v.
Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (citation
and internal quotation marks omitted), abrogated in part on
other grounds by, United States v. McRae, 793 F.3d
392 (4th Cir. 2015). “[A] district court has no
discretion to rule on a Rule 60(b) motion that is
functionally equivalent to a successive [§ 2255
motion].” Winestock, 340 F.3d at 206; see
also 28 U.S.C. § 2255(h) (“A second or
successive motion [under this section] must be certified as
provided in section 2244 by a panel of the appropriate court
of appeals . . . .”).
the court must distinguish a proper Rule 60(b) motion from a
successive § 2255 motion. “[A] motion directly
attacking the prisoner's conviction or sentence will
usually amount to a successive [§ 2255 motion], while a
motion seeking a remedy for some defect in the collateral
review process will generally be deemed a proper motion to
reconsider.” Id. at 207. Because Burkes
directly attacks the validity of her sentence, the court
construes the instant motion as a motion to vacate, set
aside, or correct her sentence pursuant to § 2255.
See Scott v. United States, 761 F.Supp.2d 320, 323
(E.D. N.C. 2011) (“It is the substance of the motion,
not the label or name assigned to it by a pro se
petitioner, that determines whether a court views the motion
as arising under section 2255.”) (citing Raines v.
United States, 423 F.2d 526, 528 (4th Cir. 1970)).
after a thorough review, the court finds that the instant
motion is successive. “[A] prisoner seeking to file a
successive application in the district court must first
obtain authorization from the appropriate court of
appeals.” Winestock, 340 F.3d at 205(citing 28
U.S.C. § 2244(b)(3)). “The court of appeals must
examine the application to determine whether it contains any
claim that satisfies . . . § 2255. . . .”
Id. The class of claims that satisfies § 2255
are few. The applicant must come forward with “newly
discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense[.]”
28 U.S.C. § 2255(h)(1). Alternatively, the applicant may
cite “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” §
2255(h)(2); see also In re Vassell, 751 F.3d 267,
269 (4th Cir. 2014) (“Under this procedure,
‘[t]he court of appeals may authorize the filing of a
second or successive application only if it determines that
the application makes a prima facie showing that the
application satisfies the requirements of [§
2244(b)]' - namely, as relevant here, that the
application presents a claim that ‘relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.'”). In the absence of pre-filing
authorization from the court of appeals, the district court
is without jurisdiction to consider a second or successive
application. Winestock, 340 F.3d at 205.
has not obtained authorization from the appropriate United
States Court of Appeals to proceed with a second or
successive § 2255 motion. Because Burkes has previously
filed a § 2255 motion that was adjudicated on the
merits, the instant motion is successive. As Burkes failed to
obtain pre-filing authorization, the court lacks jurisdiction
over this successive § 2255 motion, and Burkes'
motion is dismissed.
that Burkes' § 2255 motion, docket number 1018, is
dismissed. It is further
that a certificate of appealability is denied because Burkes
has failed to make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §
IS SO ORDERED.
OF RIGHT TO APPEAL
movant is hereby notified that she has the right to appeal
this order within sixty (60) days from the date hereof
pursuant to Rules 3 and 4 of the Federal Rules of Appellate