United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL, UNITED STATES DISTRICT JUDGE.
matter is before the Court upon review of two post-judgment
motions filed by movant James McCaw: “Motion to the
Court to Correct Illegal Unconstitutional Sentence Imposed in
Violation of the Ex Post Facto Clause of the United States
Constitution, Pursuant to Rule 60(b)(4) & (6)” (ECF
No. 7) and “Motion Relating Back to the Original Issue
Timely Filed in the 2255 Habeas” (ECF No. 8).
a jury trial, movant was convicted of transporting stolen
goods and vehicles in interstate commerce, and transferring
without authorization Social Security numbers of others with
the intent to commit, aid and abet unlawful activity. On
April 3, 2003, the Court imposed an aggregate term of
imprisonment of 262 months to be followed by three years of
supervised release, and restitution. The judgment was
affirmed on appeal. United States v. McCaw, No.
03-1972 (8th Cir. 2004).
January 20, 2005, movant filed a motion to vacate pursuant to
28 U.S.C. § 2255, and on February 22, 2011, the motion
was denied. See McCaw v. United States, No.
4:05-cv-114- CEJ (E.D. Mo. Feb. 22, 2011). Movant appealed,
but on June 23, 2011 the appeal was dismissed. Movant filed
post-judgment motions pursuant to Rules 59(e) and 60(b), all
of which were denied.
2, 2014, movant initiated the instant action by filing
another motion to vacate pursuant to 28 U.S.C. § 2255.
On June 24, 2014, the Court dismissed the action without
prejudice after determining the motion was an unauthorized
successive habeas corpus application. On June 27, 2017 the
United States Court of Appeals for the Eighth Circuit denied
movant authorization to file a successive habeas corpus
action in this Court. McCaw v. U.S., No. 17-1016
(8th Cir. 2017).
Court first considers the motion movant filed pursuant to
Rule 60(b). Therein, movant asks this Court “for an
order Vacating the Void Judgment entered on April 3,
2003” because “extraordinary repugnant violations
occurred.” In support, he argues that his sentence was
imposed in violation of the Ex Post Facto Clause of the
United States Constitution. He also argues that he received
ineffective assistance of counsel and that he is actually
innocent. He concludes he has shown “exceptional
circumstances” warranting relief, and he asks the Court
to vacate judgment and resentence him.
60(b) motion is a second or successive habeas corpus
application that falls under the restrictive requirements of
28 U.S.C. § 2255 if it contains a “claim.”
Gonzalez v. Crosby, 545 U.S. 524, 529 (2005),
Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009).
“For the purpose of determining whether the motion is a
habeas corpus application, claim is defined as an asserted
federal basis for relief from a [trial] court's judgment
of conviction or as an attack on the federal court's
previous resolution of the claim on the merits.”
Ward, 577 F.3d at 933. Here, the instant motion
contains claims, as movant asserts federal bases for relief
from the trial court's judgment and the factual predicate
of his claims concern the validity of that judgment. The
Court therefore concludes that the instant motion is nothing
more than a successive habeas application. Because movant has
not obtained authorization from the Eighth Circuit Court of
Appeals to maintain the motion, this Court must dismiss it
for lack of jurisdiction. 28 U.S.C. § 2255(h).
has also filed a motion titled “Motion Relating Back to
the Original Issue Timely Filed in the 2255 Habeas.”
Therein, movant asks the Court to grant him relief
“under the Relation Back Clause” because the
trial court incorrectly imposed a sentencing enhancement. The
motion will be denied. The claims in the instant motion
cannot “relate back” to movant's original
motion, as they are separately-filed claims filed years after
the original motion was dismissed. See Benge v. United
States, 17 F.3d 1286, 1288 (10th Cir. 1994) (citing
Pipkin v. United States Postal Service, 951 F.3d 272
(10th Cir. 1991) (a separately filed claim, as opposed to an
amendment or supplementary pleading, does not relate back to
a previously filed claim)); see also Taylor v.
Norman, 2013 WL 5228504 (E.D. Mo. Sept. 16, 2003)
(citing cases) (when an original federal habeas petition has
been dismissed, there is no pending petition to which a
second petition can relate back to or amend).
final matter, the Court concludes that movant has failed to
demonstrate that jurists of reason would find it debatable
whether he is entitled to relief. Thus, the Court will not
issue a certificate of appealability. 28 U.S.C. §
IT IS HEREBY ORDERED that movant's
“Motion to the Court to Correct Illegal
Unconstitutional Sentence Imposed in Violation of the Ex Post
Facto Clause of the United States Constitution, Pursuant to
Rule 60(b)(4) & (6)” (ECF No. 7) is
DISMISSED for lack of jurisdiction.
IS FURTHER ORDERED that movant's “Motion
Relating Back to the Original Issue Timely Filed in the 2255
Habeas” (ECF No. 8) is DENIED.
IS FURTHER ORDERED that the Court will not issue a