United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Memorandum Opinion and Order entered on July 22, 2013, the
Court denied Kirk L. Loney's 28 U.S.C. § 2255 motion
and denied a certificate of appealability. United States
v. Loney, No. 3:02CR290, 2013 WL 3816739, at *6 (E.D.
Va. July 22, 2013). Since that time, Loney has inundated the
Court with requests to reconsider the Court's decision.
(See ECF Nos. 112-13, 115, 119, 121, 126, 131.)
Memorandum Opinion and Order entered on September 10, 2015,
the Court dismissed his "MOTION FOR RELIEF FROM A
JUDGMENT OR ORDER PURSUANT TO Fed.R.Civ.P. 60(b)(1), 60(b)(2)
and 60(b)(3) (4)" as an unauthorized, successive
§ 2255 Motion. ("Rule 60(b) Motion, " ECF No.
131.) Undeterred, on October 13, 2015, the Court received a
document titled, "MOTION FOR RECONSIDERATION OF A TRUE
60(b) MOTION." ("Motion to Reconsider, " ECF
No. 143.) In this Motion to Reconsider, Loney claims that his
previously denied Rule 60(b) Motion is "actually a true
60(b) motion ... as evidence came to light and would have
presented a different outcome had the evidence been known by
petitioner before judgment was past [sic] in these
proceedings." (Mot. Reconsider 1.) Like a broken record,
Loney once again challenges the sufficiency of the evidence
to support his conviction, alleges fraud by police and the
prosecution, raises challenges to the plea agreement, and
drug quantity and type. Loney appears to have merely cut and
pasted an entire section from his prior Rule 60(b) Motion.
(See Motion to Reconsider 3-7; Rule 60(b) Mot. 2-4.)
Motion to Reconsider challenges the validity of his
conviction and the Court's resolution of the merits of
his § 2255 Motion. As explained below, the Motion to
Reconsider must be treated as a successive, unauthorized 28
U.S.C. § 2255 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,
"[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).
Fourth Circuit has instructed that inmates may not avoid the
bar on successive collateral attacks on their convictions and
sentences by inventive labeling. See United States v.
Winestock, 340 F.3d 200, 206 (4th Cir. 2003). A motion
pursuant to 28 U.S.C. § 2255 "'provides the
primary means of collateral attack on a federal
sentence.'" Pack v. Yusuff, 218 F.3d 448,
451 (5th Cir. 2000) (quoting Cox v. Warden, Fed. Pet.
Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990)). "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 v. United States, 359 F.3d 855, 857 (7th Cir.
2004) (citation omitted). "Any motion filed in the
district court that imposed the sentence, and substantively
within the scope of § 2255 [ (a) ], dj3 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)).
outlined above, Loney's Motion to Reconsider challenges
various aspects of his arrest, plea negotiations and
proceedings, the evidence against him, alleges prosecutorial
misconduct, and ineffective assistance of counsel, and
challenges his sentence. Loney's Motion to Reconsider
challenges his conviction and falls squarely within the ambit
of 28 U.S.C. § 2255(a). See Gonzalez v. Crosby,
545 U.S. 524, 530-32 (2005) (construing a motion as a
successive "habeas corpus application" if it
"seeks vindication" of "a claim" for
relief from the criminal judgment, regardless of the title of
the motion) . Accordingly, the Clerk will be directed to
file the Motion to Reconsider as a successive § 2255
Motion. The Court has not received authorization from the
Fourth Circuit to hear Loney's successive § 2255
Motion. The § 2255 Motion (ECF No. 143) will be
dismissed for want of jurisdiction.
appeal may not be taken from the final order in a § 2255
proceeding unless a judge issues a certificate of
appealability ("COA"). 28 U.S.C. §
2253(c)(1)(B). A COA will not issue unless a prisoner makes
"a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). This requirement is
satisfied only when "reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were 'adequate to deserve encouragement to
proceed further.'" Slack v. McDaniel, 529
U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 & n.4 (1983)). Loney fails to satisfy
this standard. Accordingly, a certificate of appealability
will be denied.
Clerk is directed to send a copy of the Memorandum Opinion to
 As previously explained, Loney does
not challenge "'some defect in the integrity of the
federal habeas proceedings'" in the instant motion,
thus, his motion is not a "true Rule 60(b) motion
" United States v. McCrae, 793 F.3d 392, 2015
WL 4190665, at *5 (4th Cir. July 13, 2015) (quoting
Gonzalez, 545 U.S. at 532), or a mixed Rule 60(b)
motion and successive habeas application. At most he
seemingly challenges the Court's prior determination that
his Rule 60(b) Motion was successive. Despite this passing
reference that the Court should not have construed his Rule
60(b) as successive, he raises ...