United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Petitioner Corey Thomas
Jones's ("Petitioner") Federal Rule of Civil
Procedure 60 (b) Motion for Relief from Judgment and his
Federal Rule of Criminal Procedure 33(a) Motion for New
April 25, 2012, after a three-day trial, a jury found
Petitioner guilty of conspiracy to commit bank robbery, in
violation of 18 U.S.C. § 371 (Count One), and armed bank
robbery, in violation of 18 U.S.C. § 2113 (a) and (d)
(Count Two) . He was acquitted on a third charge for using
and carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c). On July
13, 2012, the Court sentenced Petitioner to a concurrent term
of 60 months on Count One and 2 00 months on Count Two.
Petitioner appealed his conviction to the Fourth Circuit,
which affirmed his conviction.He also filed an unsuccessful
petition for writ of certiorari to the Supreme Court.
the jury returned a verdict of guilty on these two counts,
Petitioner has filed multiple motions claiming to have found
"newly discovered evidence" supporting his
innocence. A week before sentencing, on July 6, 2012,
Petitioner moved for a new trial to hear the newly discovered
evidence of Michael Brown, an alibi witness. The Court denied
the motion on July 13, 2012. On November 4, 2014, Petitioner
filed his first 18 U.S.C. § 2255 motion, which the Court
denied on October 2, 2015, after considering the merits of
April 28, 2015, Petitioner filed another motion for a new
trial to hear the newly discovered evidence of Brandon
Selman, another alibi witness. On December 14, 2015,
Petitioner filed a motion for reconsideration of the
Court's denial of Petitioner's § 2255 motion,
which the Court denied on March 9, 2016. Petitioner filed a
notice of appeal in the Fourth Circuit on this Court's
denial of his § 2255 motion, but Petitioner's appeal
was dismissed because his notice of appeal was untimely.
October 4, 2016, Petitioner has filed yet another motion
attempting to argue that he has uncovered "new
evidence." In this motion, Petitioner reguests relief
pursuant to Federal Rule of Civil Procedure 60(b), arguing
that the Court made an "erroneous factual finding and
mistake" in denying Petitioner's § 2255 motion.
Petitioner has also moved for a new trial pursuant to Federal
Rule of Criminal Procedure 33(a). The Government responded to
both of the instant motions on January 23, 2017, and the
matter is ripe for resolution.
preliminary matter, Federal Civil Procedure Rule 60(b)
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
28 U.S.C. § 2255, a person may attack his sentence or
conviction on the grounds that it was imposed in violation of
the Constitution or laws of the United States, that the court
was without jurisdiction to impose such a sentence, that the
sentence exceeded the maximum authorized by law, or that the
sentence otherwise is subject to collateral attack. 28 U.S.C.
§ 2255; see also Hill v. United States, 368
U.S. 424, 426-27 (1962). The party seeking relief bears the
burden of proving his grounds for collateral relief by a
preponderance of the evidence. Vanater v. Boles, 377
F.2d 898, 900 (4th Cir. 1967).
petitioner is limited to filing one § 2255 motion unless
he obtains certification from the appropriate court of
appeals. See Castro v. United States, 540 U.S. 375,
380 (2003). A district court lacks jurisdiction to hear a
second or successive § 22 55 motion if the petitioner
has not received certification from the court of appeals. 28
U.S.C. § 2255(h); see also Winestock, 340 F.3d
at 205 ("In the absence of pre-filing authorization, the
district court lacks jurisdiction to consider an application
containing abusive or repetitive claims."). A §
2255 motion is second or successive if a previous § 2255
motion has been decided on the merits. Harvey v.
Horan, 278 F.3d 370, 380 (4th Cir.2002).
Petitioner's instant motion is a second § 2255
motion, and there is no evidence to suggest that Petitioner
received certification from the United States Court of
Appeals for the Fourth Circuit to file it. Without
certification to file a second or successive motion, §
2255(h) compels the Court to deny Petitioner's second
§ 2255 motion. Petitioner's first § 22 55
motion was decided on the merits, and he is barred from
filing a second motion without pre-filing authorization from
the Fourth Circuit.
the Court turns to Petitioner's motion pursuant to
Federal Rule of Criminal Procedure 33(a). Rule 33(a) provides
that "[u]pon the defendant's motion, the court may
vacate any judgment and grant a new trial if the interest of
justice so requires." Fed. R. Crim. P. 33(a). If the
motion for a new trial is based on newly discovered evidence,
the petitioner must move for a new trial within three years
after the verdict or finding of guilty. Fed. R. Crim. P. 33
(b) (1) . The petitioner must then prove that: (1) the
evidence is newly discovered; (2) the defendant exercised due
diligence in discovering the evidence; (3) the evidence is
not cumulative or merely impeaching; (4) the evidence is
material; and (5) the evidence would likely result in
acquittal at a new trial. United States v. Singh, 54
F.3d 1182, 1190 (4th Cir. 1995).
Petitioner has not met his burden to prove that a new trial
is warranted. The allegedly "new evidence" from
alibi witness Brandon Selman is not new. In his first §
2255 motion and his supplemental filing related to that
motion, Petitioner presented Brandon Selman as a new alibi
witness. The Court rejected Petitioner's arguments
regarding Brandon Selman because the jury could have placed
greater weight on the other alibi evidence presented by
Petitioner at trial. But the jury did not. Likewise, the
alibi evidence presented by Petitioner is cumulative and not
likely to result in acquittal. Thus, Petitioner has failed to
present new evidence that satisfies the requirements for
obtaining a new trial.
previously mentioned reasons, Petitioner's Rule 60(b)
Motion for Relief from Judgment and Rule 33(a) Motion for a
New Trial ...