United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
W. Phillips SENIOR UNITED STATES DISTRICT JUDGE
has filed a “Motion to Dismiss Case and Vacate Sentence
for Lack of Jurisdiction Under 28 U.S.C. § 2072(b) and
Rule 60(d)” [Doc. 34] and the United States has
responded in opposition [Doc. 40]. For the reasons set forth
herein, the defendant's motion will be
December 4, 2012, defendant was charged in an indictment with
two counts of distributing 28 grams or more of cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B) [Doc. 1]. On May 9, 2013, defendant pled guilty
to both counts of the indictment. As set forth in the factual
basis [Doc. 14] and in the Presentence Investigation Report
(“PSR”) [Doc. 24], defendant sold crack cocaine
to a confidential informant on two occasions in quantities of
46.2 grams and 47.4 grams respectively.
to 21 U.S.C. § 851, the government filed an information
and notice of enhanced penalties [Doc. 11] due to
defendant's previous drug trafficking conviction in this
Court, in case number 1:07-CR-55. By judgment dated August 5,
2013, the defendant was sentenced by United States District
Judge Danny C. Reeves to a total term of imprisonment of 120
months [Doc. 26]. Because of the enhanced penalties, the
defendant was subject to a mandatory minimum sentence of 120
months. The defendant filed an appeal [Doc. 27], and then
voluntarily dismissed his appeal in November 2014 [Doc. 31].
Defendant filed the instant motion on January 28, 2019 [Doc.
34]. Defendant's primary complaint is that his indictment
was invalid and therefore the Court lacked jurisdiction to
sentence him [Id. at pp. 2-7, 11-14]. Defendant also
raises several issues of ineffective assistance of counsel
[Id. at pp. 8-11]. Defendant asks that his
conviction be reversed and that he be released from prison.
seeks relief under 28 U.S.C. § 2072(b) and Fed.R.Civ.P.
60(d). As an initial matter, neither of these provisions
provide any authority to grant the requested relief. Title 28
U.S.C. § 2072(b) provides that the federal rules of
practice, procedure, and evidence “shall not abridge,
enlarge, or modify any substantive right.” This
provision does not create any additional right to relief from
judgment. Fed.R.Civ.P. 60(d) is a rule of civil procedure and
does not provide relief from judgment in criminal
proceedings. United States v. Gibson, 424 Fed.Appx.
461, 464 (6th Cir. 2011).
court may modify an imposed term of imprisonment to the
extent otherwise expressly permitted by statute or by Rule 35
of the Federal Rules of Criminal Procedure.” 18 U.S.C.
§ 3582(c)(1)(B). “Only two statutory provisions
permit such a modification: 28 U.S.C. §§ 2106 and
2255[.]” United States v. Zabawa, 134
Fed.Appx. 60, 67 (6th Cir. 2005).
2106, pertaining to intervening reversals by the Supreme
Court or another appellate court, is inapplicable here. As
the government notes [Doc. 40 at pp. 2-3], defendant has not
cited 28 U.S.C. § 2255 as grounds for relief, although
that statute is generally “the exclusive way for
federal prisoners to collaterally attack their
convictions.” Brice v. Snyder, 82 Fed.Appx.
444, 446 (6th Cir. 2003); see Capaldi v. Pontesso,
135 F.3d 1122, 1123-24 (6th Cir. 1998) (explaining that, when
a Petitioner alleges that his sentence violates the
Constitution or laws of the United States or alleges that the
district court lacked jurisdiction, relief should be sought
via “an application under § 2255”);
accord United States v. Melton, 359 F.3d 855, 857
(7th Cir. 2004) (“Any motion filed in the district
court that imposed the sentence, and substantively within the
scope of § 2255 ... is a motion under §
2255, no matter what title [is] plaster[ed] on the
cover.” (emphasis in original; internal citations
Court were to construe the instant motion as a § 2255
motion, the motion would be barred by the one-year
limitations period which generally runs from the date on
which the judgment of conviction becomes final. See
28 U.S.C. § 2255(f)(1). The defendant's conviction
became final in 2015 and he would have had one year from that
time to file a § 2255 motion. See Sanchez-Castellano
v. United States, 358 F.3d 424, 426 (6th Cir. 2004)
(“[w]hen a federal criminal defendant takes a direct
appeal to the court of appeals, his judgment of conviction
becomes final for § 2255 purposes upon the expiration of
the 90-day period in which the defendant could have
petitioned for certiorari to the Supreme Court, even when no
certiorari petition has been filed.”). The present
motion was not filed until January 2019 and, if construed as
a § 2255 motion, would clearly be time-barred.
the Court would not consider recharacterizing the motion as a
§ 2255 motion because of potentially adverse
consequences attached to filing of another § 2255
motion. One of those consequences is that any that subsequent
motion would be subject to the restrictions on “second
or successive” motions in 28 U.S.C. § 2255(h).
See Castro v. United States, 540 U.S. 375, 382
(2003) (before a pro se litigant's motion may be
recharacterized as a first § 2255 motion, the district
court must give certain warnings); accord In re
Shelton, 295 F.3d 620, 622 (6th Cir. 2002). Warnings
about those consequences, however, would not be necessary in
this case because the present motion, though it would be
defendant's first motion to vacate, is time-barred and
none of those disadvantages would attach to the treatment of
the motion as a § 2255 motion. See United States v.
Martin, 357 F.3d 1198, 1200 (10th Cir. 2004); United
States v. Chew, 284 F.3d 468, 471 (3d Cir. 2002) (where
a motion to vacate is time-barred, providing notice is
“an exercise in futility.”); United States v.
Robinson, No. 2:02-CR-072, 2015 WL 1333969, at *1 (E.D.
Tenn. Mar. 25, 2015).
Rule 35 is also inapplicable to the present motion, as that
rule authorizes correction or reduction of sentence only: (1)
upon a substantial assistance motion filed by the government;
or (2) to “correct a sentence that resulted from
arithmetical, technical, or other clear error” if done
within 14 days after sentencing. See Fed. R. Crim.
P. 35. The motion now before the court is not brought by the
government for substantial assistance, and Rule 35(a)'s
14-day window has long closed. Further, there was no
“arithmetical, technical, or other clear error”
in this case.
the 14-day period set by Rule 35(a), “the court has
jurisdiction to amend the sentence only in conformity with
Rule 36.” United States v. Robinson, 368 F.3d
653, 656 (6th Cir. 2004). Rule 36 allows the court to correct
“clerical errors” or “errors in the record
arising from oversight or omission.” See Fed.
R. Crim. P. 36. However, Rule 36 is available only to correct
clerical errors, not to cure “unexpressed sentencing
expectations.” Robinson, 368 F.3d at 656-57.
The defendant has alleged no clerical error in this case.
conclusion, defendant's motion is untimely no matter how
it is construed and cites no applicable grounds for relief.