United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Memorandum Opinion and entered on January 3, 2005, the Court
denied a motion under 28 U.S.C. § 2255 filed by Craig
Murphy. (ECF Nos. 110-111.) On December 9, 2014, the Court
received from Murphy a "Motion Pursuant to Fed. R. Crim.
P. 12(b)(2) Sufficiency of an Information
'Jurisdictional' Defect." ("December 9,
2014 Motion, " ECF No. 1894 (capitalization corrected).)
On October 19, 2015 the Court received from Murphy a motion
seeking relief under Federal Rule of Civil Procedure 60(d)(1)
("Rule 60(d) Motion, " ECF No. 1895). As explained
below, both the December 9, 2014 Motion and the Rule 60(d)
Motion must be treated as a successive, unauthorized 28
U.S.C. § 2255 Motions.
to the extent that Murphy attempts to attack the Court's
"judgment" by way of Federal Rule of Civil
Procedure 60(d)(1) he may not do so. United States v.
Merica, Nos. 5:05CR00015, No. 5:11CV80375, 2011 WL
6325881, at *2 (W.D. Va. Dec. 16, 2011) (citing United
States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998)).
A motion under Rule 60(d) is an inappropriate method of
attacking a criminal conviction. Moreover to the extent that
Murphy intends to use Rule 60(d) to directly attach his
convictions, as discussed below, the Court lacks jurisdiction
to consider the motion.
Antiterrorism and Effective Death Penalty Act of 1996
restricted the jurisdiction of the district courts to hear
second or successive applications for federal habeas corpus
relief by prisoners attacking the validity of their
convictions and sentences by establishing a "gatekeeping
mechanism." Felker v. Turpin, 518 U.S. 651, 657
(1996) (internal quotation marks omitted). Specifically,
w [b]efore a second or successive application
permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the
application." 28 U.S.C. § 2244(b)(3)(A).
cannot avoid that result by simply omitting reference to 28
U.S.C. § 2255 in his submission. See Melton v.
United States, 359 F.3d 855, 857 (7th Cir. 2004);
United States v. Winestock, 340 F.3d 200, 207 (4th
Cir. 2003) (emphasizing that inmates may not circumvent the
limitations on successive § 2255 motions simply by
inventive labeling). "Call it a motion for a new trial,
arrest of judgment, mandamus, prohibition, coram nobis, coram
vobis, audita querela, certiorari, capias, habeas corpus,
ejectment, quare impedit . . . or an application for a
Get-Out-of-Jail-Card; the name makes no difference. It is
substance that controls." Melton, 359 F.3d at
857 (citing Thurman v. Gramley, 97 F.3d 185, 186-87
(7th Cir. 1996)). "Any motion filed in the district
court that imposed the sentence, and substantively within the
scope of § 2255[(a)], is a motion under § 2255, no
matter what title the prisoner plasters on the cover."
Id. (citing Ramunno v. United States, 264
F.3d 723 (7th Cir. 2001)).
United States Court of Appeals for the Fourth Circuit has
held "that district courts must treat Rule
60(b) motions as successive collateral review applications
when failing to do so would allow the applicant to 'evade
the bar against relitigation of claims presented in a prior
application or the bar against litigation of claims not
presented in a prior application.'"
Winestock, 340 F.3d at 200 (quoting Ca1deron v.
Thompson, 523 U.S. 538, 553 (1998)). The same rationale
applies to Murphy's Rule 60(d) Motion. See
Merica, 2011 WL 6325881, at *2. The Fourth Circuit
has provided the following guidance in distinguishing between
a proper Rule 60(b) motion or an improper successive §
2255 motion or habeas petition:
[A] motion directly attacking the prisoner's conviction
or sentence will usually amount to a successive application,
while a motion seeking a remedy for some defect in the
collateral review process will generally be deemed a proper
motion to reconsider. Thus, a brand-new, free-standing
allegation of constitutional error in the underlying criminal
judgment will virtually always implicate the rules governing
successive applications. Similarly, new legal arguments or
proffers of additional evidence will usually signify that the
prisoner is not seeking relief available under Rule 60(b) but
is instead continuing his collateral attack on his conviction
Id. at 207 (internal citation omitted). Here,
Murphy's Rule 60(d) Motion raises challenges to his
convictions, rather than any defects in his federal
collateral proceedings. Accordingly, the Court must treat the
Rule 60(d) Motion as a successive § 2255 motion. The
Court has not received authorization from the Fourth Circuit
to file the present § 2255 motion. Therefore, the Rule
60(d) Motion (ECF No. 1895) will be dismissed for want of
regard to the December 9, 2014 Motion, Murphy requests the
Court “to review De Novo a challenge to the sufficiency
of the information" and claims that the Court was
"without proper jurisdiction to entertain the charges of
First degree murder." (Dec. 9, 2014 Mot. 1.) Once again,
Murphy attempts to challenge his underlying conviction.
Murphy's December 9, 2014 Motion falls squarely within
the ambit of § 2255. The Court has not received
authorization from the Fourth Circuit to file this additional
§ 2255 motion. Accordingly, the December 9, 2014 Motion
(ECF No. 18 94) will be dismissed for want of jurisdiction.
Court will deny a certificate of appealability for both
Clerk is directed to send a copy of this Memorandum Opinion
to Murphy and counsel for the United States.
 Murphy's main argument insists
that counsel was ineffective because he failed to discuss a
plea offer with him, a claim that falls squarely ...