United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
JOHN' A. ROSS UNITED STATES DISTRICT JUDGE.
closed federal habeas matter under 28 U.S.C. § 2255 is
before the Court on Petitioner Dwight Rhodes
("Rhodes")'s Motion for Relief from Judgment
and Order Under Rule 60(b)(6). (Doc. No. 35). Respondent
filed its Response to Court Order (Doc. No. 39); Rhodes did
not file a reply and the time for doing so has passed. The
motion is therefore fully briefed and ready for disposition.
October 20, 2011, a federal grand jury returned a four-count
indictment against Rhodes, charging him with (1) possession
of marijuana in violation of 21 U.S.C. § 844(a) (Count
I); (2) being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1) (Count II); (3) using and
maintaining a premises for the purpose of distributing and
using a controlled substance in violation of 21 U.S.C. §
856(a)(1) (Count III); and (4) possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (Count IV). United States v.
Rhodes, No. 4:11-CR-00441-JAR-1 (E.D. Mo.). After a
two-day jury trial on June 25 and 26, 2012, Rhodes was found
guilty on all four counts.
September 27, 2012, Rhodes was sentenced to concurrent terms
of 12 months on Count I and 94 months on Counts II and III,
and a consecutive term of 60 months on Count IV, for a total
term of imprisonment of 154 months. On appeal to the Eighth
Circuit, Rhodes argued that the trial court erred in denying
his motion for judgment of acquittal on Count III because the
evidence was insufficient to prove that his purpose in using
or maintaining the premises in question was to distribute a
controlled substance. The Eighth Circuit rejected his
argument and affirmed this Court's judgment and sentence
on September 13, 2013. United States v. Rhodes, 730
F.3d 727 (8th Cir. 2013). His petition for writ of certiorari
was denied by the United States Supreme Court on March 10,
2014. Rhodes v. United States. 134 S.Ct. 1525
March 9, 2015, Rhodes timely moved to vacate his sentence
under 28 U.S.C. § 2255 on the grounds that his counsel
was ineffective in the following respects: (1) by failing to
raise on direct appeal whether or not the District Court
erred in denying his motion to suppress evidence; (2) by
failing to raise on direct appeal whether or not the District
Court erred in denying his motion in limine; (3) by failing
to perform proper pre-trial investigation; (4) by failing to
call witnesses at trial and at the suppression hearing; (5)
by failing to argue at the suppression hearing that calls
made to the police by his former girlfriend were false; and
(6) by failing to challenge the validity of the search
warrant. On September 11, 2017, Rhodes filed a motion to
amend his § 2255 motion on the grounds that 18 U.S.C.
§ 924 is "void for vagueness" and urged the
Court to "hold" his § 2255 motion pending the
appeal in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.
2015), and to consider reducing the underlying offense
pursuant to Dean v. U.S., 137 S.Ct. 1170(2017).
Court denied Rhodes' § 2255 motion and his motion to
amend, finding that the decisions in Dimaya and
Dean were inapplicable to his case. (Doc. No. 26,
27). The Court also declined to issue a certificate of
appealability because he could not make a substantial showing
of the denial of a constitutional right. On March 6, 2018,
Rhodes appealed the Court's order denying his § 2255
motion; on June 25, 2018, the Eighth Circuit denied
Rhodes' application for a certificate of appealability
and dismissed his appeal. Rhodes v. United States,
No. 18-1543, 2018 WL 4354411 (8th Cir. June 25, 2018).
24, 2018, Rhodes moved to reopen this closed § 2255 case
pursuant to Fed.R.Civ.P. 60(b)(6). In support of his motion,
Rhodes focuses on the first sentence in the following
footnote to the Eighth Circuit's opinion affirming his
conviction and sentence:
Neither counsel addresses how the § 856(a)(1) count
impacted Rhodes's sentence, which was within the advisory
guidelines range. The PSR grouped the count with a firearm
offense that had a higher offense level. See U.S.S.G. §
3D1.3(a). Defense counsel argued to the district court that
acquittal on this count "would also necessitate the
dismissal of Count IV," a second firearm offense that
carried a mandatory, consecutive 60-month sentence. But this
was not argued on appeal.
Rhodes, 730 F.3d at 782, fn. 2. Rhodes argues this
is "proof of counsels' [sic] ineffective assistance
in violation of Strickland ... and structural error in
violation of Fifth Amendment Due Process Clause." Rhodes
further argues that counsel's failure to address the
grouping of closely related counts as instructed by Section
3D1.3 of the Sentencing Guidelines caused his sentence to be
"inadequate" and unconstitutional. Respondent
opposes the motion, arguing that it is in fact a second or
successive collateral attack under § 2255 and should be
dismissed for failure to obtain authorization from the Eighth
may grant relief under Rule 60(b)(6) for "any other
reason that justifies relief when a motion is made
"within a reasonable time." Fed.R.Civ.P. 60(b)(6).
Petitioners sometimes request relief under Rule 60(b) when
the motion is more properly characterized as a successive
§ 2254 petition. See, eg., Bovd v. United
States, 304 F.3d 813, 814 (8th Cir. 2002). However, a
state prisoner may file a second or successive motion under
§ 2254 only after obtaining authorization to do so from
the appropriate United States Court of Appeals. 28 U.S.C.
§ 2244(b)(3). Where a prisoner files a Rule 60(b) motion
following the dismissal of a habeas petition, the district
court must determine whether the allegations in the Rule
60(b) motion in fact amount to a second or successive
collateral attack under 28 U.S.C. § 2254. Boyd,
304 F.3d at 814. If the Court determines a Rule 60(b) motion
to be a second or successive habeas petition, the Court must
dismiss it for failure to obtain authorization from the Court
of Appeals, or alternatively transfer the motion to the
Eighth Circuit. Id. "It is well-established
that inmates may not bypass the authorization requirement of
28 U.S.C. § 2244(b)(3) for filing a second or successive
§ 2254 ... action by purporting to invoke some other
procedure." United States v. Lambros. 404 F.3d
1034, 1036 (8th Cir. 2005).
60(b) motion is considered a second or successive habeas
petition if it contains a "claim." Ward v.
Norris, 577 F.3d 925, 933 (8th Cir. 2009). A Rule 60(b)
motion contains a claim if it "seeks to add a new ground
for relief or "attacks the federal court's previous
resolution of a claim on the merits." Gonzalez v.
Crosby, 545 U.S. 524, 532 (2005). A petitioner may use a
Rule 60(b) motion to challenge a procedural ruling of the
habeas court or a defect in the integrity of his federal
habeas proceedings, but a motion attacking the merits of the
denial of a claim in a prior habeas proceeding or asserting
or reasserting a federal basis for relief from the underlying
conviction must be treated as a second or successive section
habeas petition. IcL at 530-32.
Antiterrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. § 2244, imposes three ...