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United States v. Nelson

United States District Court, S.D. Alabama, Southern Division

January 9, 2019




         This matter is before the Court on Defendant, Richard Nelson's untitled handwritten letter to this Court, which has been construed as a Motion to Reconsider the undersigned's previous order denying Nelson's Motion to Vacate pursuant to § 2255. (Doc. 136). For the reasons set forth herein below, Nelson's Motion (Doc. 136) is DENIED.


         Following a jury trial held July 14-15, 2008, Nelson was found guilty of enticement of a minor to engage in sexual activity and commission of a felony offense involving a minor by a registered sex offender, in violation of 18 U.S.C. §§ 2422(b) and 2260A. On October 24, 2008, Nelson was sentenced to 525 months in the custody of the Bureau of Prisons. (Doc. 84). The same day, Nelson filed a Notice of Appeal (Doc. 79) and on July 13, 2009, the Court of Appeals for the Eleventh Circuit affirmed his convictions. (Doc. 107). On October 15, 2009, the United States Supreme Court denied certiorari. (Doc. 108).

         On July 1, 2013, Nelson filed a “motion for leave to file out of time, ” which the district court denied via an endorsed order. (Docs. 114-115). Nelson appealed the order denying his motion and on March 5, 2014 the Court of Appeals concluded that Nelson's appeal was frivolous, explaining:

In 201[3], Nelson filed the motion at issue in this appeal. In this self-styled “motion for leave to file out of time, ” Nelson asked the district court for leave to file out of time, on the grounds that he had only recently learned how to use computers to conduct legal research and had limited computer time. He did not state what sort of motion or other filing he sought to untimely file, but, based on the nature of the issues that he indicated he wished to raise -- ineffective assistance of counsel, pretrial publicity, and conflict of interest --he apparently intended to file an untimely 28 U.S.C. § 2255 motion to vacate. He also asked the court to issue subpoenas for the press coverage of his criminal trial from two local news sources. In an endorsed order, the court denied his self-styled motion. The district court also denied his motion to proceed IFP on appeal.
As an initial matter, Nelson has not filed a motion to vacate, pursuant to § 2255, and does not need a certificate of appealability to proceed on appeal. See 28 U.S.C. § 2253(c). Thus, the only issue before us is whether his appeal would be frivolous. See Id. § 1915(e)(2)(8)(1). An action is frivolous if it is without arguable merit either in law or fact. Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).
Although Nelson admits that any post-conviction motion he might file would be untimely, the district court properly denied his request to untimely file a motion challenging his convictions because he does not need the district court's permission to file a motion to vacate, untimely or otherwise.

(Doc. 125 at 2). In August 2017, nearly seven years after his conviction became final, Nelson filed his first motion pursuant to § 2255. (Doc. 130).[1]

         On October 2, 2017, United States Magistrate Judge Katherine Nelson entered an Order directing Nelson to show cause why his § 2255 motion was not time-barred. (Doc. 131). Nelson responded to the show cause order on October 25, 2017, and requested that this Court “have leniency due to lack of knowledge regarding legal information, terminology, cites, statutes, limitations, and research abilities…” and indicated that he had only reviewed the presentence report in its entirety a few months prior to the filing of his § 2255 motion and that he had difficulty researching and getting help with his motion while incarcerated. (Doc. 132 at 2, 4-6). On December 12, 2107, Magistrate Judge Nelson entered a Report and Recommendation recommending that Nelson's petition be dismissed as time-barred (Doc. 133) and on January 9, 2018, the Report and Recommendation was adopted as the opinion of this Court (Doc. 134). The Order additionally denied Nelson a certificate of appealability, as he was not entitled to appeal in forma pauperis. (Id.)

         On August 16, 2018, Nelson filed the instant untitled, handwritten letter, which this Court has construed as a Motion to Reconsider and/or Re-open his § 2255 pursuant to Fed. R. Civ. Pro. 60(b). (Doc. 136). Therein, Nelson takes issue with this Court's finding that he failed to state or address why his motion was not time-barred and for support, he points out that his previous filings did, in fact, state why his motion was untimely, but should not be time-barred. (Doc. 136, generally). Nelson then requests this Court review the pleadings previously filed in this action and re-open his case. In the alternative, Nelson requests permission to file a second or successive § 2255 motion “which includes the same issues as contained within the first motion, which were undoubtedly overlooked or ignored by [the] District Court.” (Id. at 7).


         Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence. Fed.R.Civ.P. Rule 60(b). However, there are limitations on habeas petitioners' ability to rely on Rule 60(b) motions to circumvent statutory restrictions on second or successive § 2254 or § 2255 petitions. The Eleventh Circuit has explained that “Federal Rule of Civil Procedure 60 provides a basis, but only a limited basis, for a party to seek relief from a final judgment in a habeas case.” Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007).

         As a result, before considering the merits of Petitioner's motion, this Court must determine whether it has jurisdiction, i.e., whether Nelson's Rule 60(b) motion is truly a second or successive § 2255 petition. “If Petitioner's 60(b) motion is not really a second or successive habeas petition, the district court has jurisdiction to consider the merits of the motion.” Zakrzewski v. McDonough, 490 F.3d 1264, 1267 (11th Cir. 2007). The law is clear that “a Rule 60(b) motion is to be treated as a successive habeas petition if it: (1) seeks to add a new ground of relief; or (2) attacks the federal court's previous resolution of a claim on the merits.” Williams, 510 F.3d at 1293-94 (quoting Gonzalez v. Crosby, 545 U.S. 524, 532, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)). By contrast, the Rule 60(b) motion is not to be regarded as a successive petition if ...

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