United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Petitioner Joseph Richard
Perry's Motion to Vacate Judgment pursuant to Federal
Rule of Civil Procedure 60(B)(4). Petitioner moves to vacate
his October 6, 1999, conviction for operating a motor vehicle
while being classified as a habitual offender.
October 27, 1997, Petitioner drove a vehicle onto the
premises of the Central Intelligence Agency (CIA) in Langley,
Virginia. When he approached a mandatory stop, Petitioner
used a speaker box to ask for directions because he was lost.
Agent Todd Dunn invited Petitioner to drive to the end of the
parking lot for further assistance. Upon nearing
Petitioner's vehicle, Agent Dunn detected a strong odor
of alcohol. In response to a question from Agent Dunn,
Petitioner admitted that he had been drinking.
Agent Dunn asked Petitioner to produce a driver's
license, Petitioner failed to do so although he did produce a
Virginia identification card. Agent Dunn ran a computer check
on the identification card. He discovered that Petitioner was
operating a motor vehicle under a suspended and revoked
license and that Petitioner was classified in June 1990 as a
habitual offender in Virginia. The CIA does not conduct field
sobriety tests, so Agent Dunn contacted the Fairfax County
Police Department. Officer Keith Carrero arrived ten minutes
arriving at the scene, Officer Carrero observed an open
container of alcohol in plain view in Petitioner's
vehicle. Officer Carrero arrested Petitioner for drunkenness
in public. On January 21, 1999, a federal grand jury in the
Eastern District of Virginia indicted and charged Petitioner
with operating a motor vehicle while classified as an
habitual offender in violation of 18 U.S.C. § 13
(assimilating Va. Code Ann. § 46.2-357(B)(3)). On
October 6, 1999, after a bench trial, Petitioner was found
guilty for operating a motor vehicle while classified as a
that time, Petitioner has repeatedly attempted to vacate this
conviction. In the instant motion, Petitioner argues that his
conviction is void ab initio because his
classification in June 1990 as a habitual offender was
improper. Petitioner relies on an affidavit from Judge Frank
A. Hoss, Jr., a retired circuit judge in Prince William
County, to support this contention. Judge Hoss had presided
over the June 1990 hearing when Petitioner was classified as
a habitual offender.
preliminary issue, Federal Rule of Civil Procedure 60(b) (4)
applies to civil cases and is not a proper means for
challenging a criminal conviction or sentence. If a criminal
defendant challenges his conviction or sentence pursuant to a
Rule 60(b) motion, the court should construe the motion as a
28 U.S.C. § 2255 motion. United States v.
Winestock, 340 F.3d 200, 206 (4th Cir. 2003); United
States v. Delgado, No. 2:06CR164, 2013 WL 11583637, at
*1 (E.D. Va. July 24, 2013) ("Where, as here, a criminal
defendant seeks to attack his conviction or sentence, the
court must treat the Motion as a habeas corpus
petition."). Without obtaining certification under
§ 2244, a petitioner may only file one habeas petition.
See Castro v. United States, 540 U.S. 375, 380
the Petitioner's instant motion is barred because it is a
successive application. Petitioner previously filed multiple
motions under § 2255, including a § 2255 motion in
February 6, 2002 and another § 2255 motion on December
10, 2010. Since the instant motion is a successive §
2255 motion without certification, the motion is barred.
Furthermore, Petitioner's motion is time-barred. A §
2255 motion is subject to a one-year statute of limitations.
See 28 U.S.C. § 2255(f). Petitioner was
convicted on October 6, 1999, yet the instant motion was not
filed until well over a decade after the date of conviction.
the Petitioner's motion was properly before the Court,
the motion is still without merit. As the Fourth Circuit
previously held in this case, "'Perry's
conviction for operating a motor vehicle while classified as
an habitual offender does not rest on the validity of his
conviction underlying his habitual offender status. . . .
[It] rests on the fact that he operated a motor vehicle while
under a court order not to do so." United States v.
Perry, 20 F.App'x 97, 104 (4th Cir. 2001).
Perry is consistent with Mays v. Harris,
523 F.2d 1258, 1259 (4th Cir. 1975), where the Fourth Circuit
held that the defendant was convicted and sentenced "not
because he was an adjudged habitual offender, but because he
wilfully and flagrantly violated an extant court order."
the defendant in Mays, Petitioner was convicted and
sentenced because he flagrantly disregarded a court order
prohibiting him from driving a motor vehicle while classified
as a habitual offender. Thus, even if his classification in
June 1990 as a habitual offender was incorrect, Petitioner
was still not justified to disregard the court order that
prohibited him from driving while his license was suspended.
See Walker v. City of Birmingham, 388 U.S. 307, 320
(1967)P[I]n the fair administration of justice no man can be
judge in his own case."
foregoing reasons, the Petitioner's Motion to Vacate is