United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
HENRY COKE MORGAN, Jr., District Judge.
This matter is before the Court on pro se petitioner Lynval K. Anderson's ("Petitioner" or "Anderson") Motions for the Respondent for Order to Produce Grand Jury Testimony and the Release of the 3500 Material, Doc. 99, Motion for Relief from Judgment, Doc. 100, and Motion to Expedite Proceedings, Doc. 103. For the reasons stated herein, the Court DENIES the Motions.
The instant motions are the latest in a long-line of post-trial motions that Petitioner has filed with this Court attempting to attack his March 25, 1999 conviction for participating in a continuing criminal enterprise, in violation of 21 U.S.C. §§ 846 and 841(a)(1). On July 13, 1999, Petitioner was sentenced to 480 months imprisonment, 5 years supervised release, and ordered to pay a $100 special assessment. Doe. 42. The same day that the Court entered judgment, Petitioner filed his notice of appeal. Doc. 43. The appeal was dismissed on September 7, 1999 because Petitioner waived his right to appeal in his plea agreement. Doc. 45.
On June 29, 2000, Petitioner moved for a Reduction of Sentence for Substantial Assistance. Doc. 48. On July 11, 2000, the Government responded in opposition. Doc. 49. By Order dated July 18, 2000, the Court denied this Motion for lack of jurisdiction because the Government had not filed the motion. Doc. 52.
However, prior to ruling on this motion, Petitioner filed his first Motion to Vacate under 28 U.S.C. § 2255 on July 14, 2000. Doc. 50. In his Motion, Petitioner asserted that he "was prepared to proceed to trial." Id. at 2. He also alleged that the Government offered him a guilty plea to only the conspiracy charge in the Indictment, but that his defense counsel failed to inform of the offer until "one to two days prior to the plea deadline." Id . By the time Petitioner decided he wanted to accept this plea offer, it expired and was not renewed. Id. at 2-3. However, in his Memorandum of Law attached to this motion, he only asserted three points in his "statement of issues": (1) whether counsel was ineffective at sentencing for failing to challenge the amount and type of drugs attributed to the Petitioner, (2) whether the Government violated his due process rights by failing to file a motion for substantial assistance, and (3) whether an evidentiary hearing was warranted. Doc. 51 at 2. He neglected to mention any alleged ineffective assistance of counsel for failing to inform him of the Government's prior plea offer in his Memorandum. On October 2, 2000, Petitioner filed a Motion to Withdraw and/or Amend his Motion to Vacate to add a claim under Apprendi v. United States , 120 S.Ct. 2348 (2000). Doc. 53. On October 12, 2000, the Court entered an Order denying Petitioner's Motion relating to the ineffective assistance of counsel at sentencing and due process claims. Doc. 54. The Court did, however, grant Petitioner leave to file an amended complaint addressing Apprendi. Id . The Court's Order did not address any alleged ineffective assistance of counsel at the plea negotiation phase. Petitioner moved for reconsideration of the Court's denial of his claim, and moved to extend time to file his amended claim, on October 23, 2000. Docs. 56-57. Petitioner's motion for reconsideration brought forth a litany of acts that Petitioner alleged showed his counsel was ineffective, including the failure to present the Government's plea offer to the conspiracy charge in a timely manner. Doc. 56 at 3. The Court denied the Motion for Reconsideration, but granted the Motion to Extend Time to file his amended claim. Doc. 58.
On January 16, 2001, Petitioner filed his supplemental memorandum addressing the Apprendi claim. Doc. 59. Petitioner moved to file a second amended § 2255 Motion on February 26, 2001. Doc. 61. On March 2, 2001, the Court ordered the Government to respond to Petitioner's first amended motion. Doc. 60. The Government filed its response on March 9, 2001. Doc. 62. By Order dated April 23, 2001, the Court denied Petitioner's § 2255 claims based on Apprendi. Doc. 63. Petitioner filed his notice of appeal and request for certificate of appealability on June 21, 2001. Doc. 64. On December 26, 2001, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") denied the request for a certificate of appealability and dismissed the appeal. Doc. 67.
On February 14, 2008, Petitioner filed a Motion for Retroactive Application of Sentencing Guidelines as to Crack Cocaine Offenses. Doc. 70. The Court ordered the Government to respond to this motion on March 21, 2008. Doc. 73. The Government responded in opposition on April 4, 2008. Doc. 74. Petitioner filed his reply on April 18, 2008. Doc. 76. On April 25, 2008, the Court entered an Order denying the motion, because Petitioner's advisory guideline range was not reduced by the amendments. Doc. 77. Petitioner filed his notice of appeal on May 5, 2008. Doc. 79. The Fourth Circuit affirmed the Court's decision on August 21, 2008. Doc. 82.
On November 22, 2011, Petitioner filed a letter motion for retroactive application of sentencing guidelines to crack cocaine offense. Doc. 88. On December 1, 2011, the Court ordered the Government to file a preliminary response indicating whether it would oppose Petitioner's motion. Doc. 89. On December 19, 2011, the Government responded in opposition. Doc. 91. Petitioner moved the Court to appoint counsel on January 10, 2012. Doc. 92. On January 18, 2012, the Court denied both motions, as again the amendments did not change the advisory guidelines used to calculate Petitioner's sentence. Doc. 93. On February 1, 2012, Petitioner filed his notice of appeal. Doc. 94. The Fourth Circuit affirmed the Court's decision on June 26, 2012. Doc. 96.
On September 12, 2012, Petitioner filed a Motion for the Respondent for Order to Produce Grand Jury Testimony and the Release of the 3500 Material pursuant to Title 18 U.S.C. § 3500 and rule 6(e) 16(a) and 16(b) Crim. Proc. (hereinafter "Grand Jury Motion"). Doc. 99. On March 21, 2013, Petitioner also filed a Motion for Relief from Judgment (hereinafter "Rule 60 Motion"). Doc. 100. On March 31, 2014, Petitioner filed a Motion to Expedite Proceedings. Doc. 103.
On May 29, 2014, the Court entered an Order advising Petitioner that it intended to characterize his Rule 60 Motion as a second or successive § 2255 Motion. Doc. 104. On June 6, 2014, Petitioner responded in opposition to the Court's characterization. Doc. 105. Accordingly, the Court will move forward addressing his Rule 60 Motion on the merits.
II. LEGAL STANDARDS
It is settled in this circuit that "[a]n indigent is not entitled to a transcript at government expense without a showing of the need, merely to comb the record in the hope of discovering some flaw." United States v. Glass , 317 F.2d 200, 202 (4th Cir. 1963). It is equally clear that when a need for a transcript in order to collaterally attack a conviction is shown, equal protection and due process require the state to furnish an indigent prisoner such transcript without charge. Lane v. Brown , 372 U.S. 477, 483 (1963). Federal Rule of Criminal Procedure 6(e) governs the disclosure of grand jury proceedings, in relevant part, "preliminarily to or in connection with a judicial proceeding[.]" Fed. R. Crim. P. 6(e)(3)(E)(i). However, the decision rests in the discretion of the Court. Douglas Oil Co. of Ca. v. Petrol Stops Nw. , 441 U.S. 211, 228 (1979); In re Grand Jury Proceedings GJ-76-4 & GJ-75-3 , 800 F.2d 1293, 1299 (4th Cir. 1986).
Rule 60(b) of the Federal Rules of Civil Procedure governs when relief from a court's judgment may be granted in a civil case. Fed.R.Civ.P. 60(b). Rule 60(b) may offer relief to a party who has filed a habeas petition pursuant to 28 U.S.C. § 2255, because such a petitioner initiates a civil matter within the ambit of the Federal Rules of Civil Procedure. United States v. Winestock , 340 F.3d 200, 206-07 (4th Cir. 2003). The Rule, however, may only be used to challenge the collateral review process-that is, the manner in which the § 2255 petition was handled by the Court-and not the merits of the underlying judgment. Id. at 207. A motion under Rule 60(b) must be filed "within a reasonable time" after the entry of the judgment. Fed.R.Civ.P. 60 (c)(1). If such a motion is filed beyond a reasonable time, it may be denied as untimely. See McLawhorn v. John W. Daniel & Co. , 924 ...