United States District Court, W.D. Virginia, Roanoke Division
L. Eckert, Assistant United States Attorney, Roanoke,
Virginia, for United States; Jimmy Lawrence Nance, Pro Se
P. JONES, UNITED STATES DISTRICT JUDGE
Jimmy Lawrence Nance filed a pro se motion entitled,
"Motion to Reopen 28 U.S.C. § 2255 Proceedings and
for an Order of Discovery, " ECF No. 293.In his motion,
Nance asked me to reconsider the dismissal of his first
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255 and to order a new trial.
also argued that the United States misled and defrauded the
court during proceedings for the prior § 2255 motion.
Consequently, the motion sought a remedy for perceived flaws
in the § 2255 proceeding and also directly attacked the
conviction. In accordance with United States v.
McRae, 793 F.3d 392, 400 (4th Cir. 2015), I ordered
Nance to file an amended motion that abandoned either the
claims about any prior § 2255 proceeding or the claims
attacking the conviction and sentence.
responded in pertinent part:
Based on these premises, petitioner understands that his
filing represents a "mixed motion" and this Court
is correct that petitioner must choose between withdrawing
the improper claims. . . .
[B]ased on the foregoing, petitioner hereby withdraws the
claim based on fraud and asks the Court to proceed on the
merits of his first claim that [the] government has and
continues to violate his due process rights by failing to
disclose to the defense the results of forensic tests done by
the FBI (NEGATIVE CONTROL TESTS) that [the] government has
never denied it had, [that exonerates petitioner] which
explains why [the] government has gone to the extreme lengths
to keep this exculpatory evidence from the light of a
Courtroom or the eyes of a Judge for a review of those
Wherefore, . . . petitioner submits he has met the
'extraordinary circumstances' required for relief
under Rule 60(b). . . .
Pet'r's Mot. to Am. Parent Pleading 2-3, 4, ECF No.
frames this argument based on "newly-discovered"
evidence in the context of Federal Rule of Civil Procedure
60(b), but he does not identify how the court erred in
dismissing any one of his numerous collateral attacks,
including his initial § 2255 proceeding. See
Nance v. United States, No. 96-0334-R, mem. op.
(W.D. Va Nov. 7, 1996), appeal dismissed, No.
96-7779, 1997 WL 85993, at *1 (4th Cir. Feb. 27, 1997)
(unpublished). He invokes Rule 60(b) to avoid the rule
against successive § 2255 motions, but his claim
directly attacks the validity of his conviction and life
sentence due to the United States' alleged
"fraud" of withholding exculpatory forensic
evidence. See United States v. Winestock, 340 F.3d
200, 207 (4th Cir. 2003) ("There may be no infallible
test for making this distinction, but a relatively
straightforward guide is that 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. . .
free-standing allegation of constitutional error in the
underlying criminal judgment will virtually always implicate
the rules governing successive applications."). A Rule
60(b) motion with a district court is not a substitute for
permission from a court of appeals to file a successive
§ 2255 motion. Accordingly, Nance's "Rule
60" motion is more appropriately deemed a successive
§ 2255 motion that attempts to present a claim of
this "newly-discovered" evidence is not new at all.
Nance's allegation about forensic evidence is essentially
the same claim he presented in September 2012. See
ECF No. 241. The court dismissed that claim without prejudice
as successive in accordance with 28 U.S.C. § 2255(h),
ECF Nos. 244-245, and the court of appeals denied a
certificate of appealability and dismissed the appeal.
United States v. Nance, 507 F.App'x 318, 319
(4th Cir. 2013) (unpublished). Nance fails to establish
either that the present claim is substantially different than
the prior collateral attack dismissed by this court and the
court of appeals or that he has received authorization to
file a successive § 2255 motion.
the Motion to Amend Parent Pleading (ECF No. 302) is GRANTED,
and the Motion to Reopen 28 U.S.C. § 2255 Proceedings
and for an Order of Discovery (ECF No. 293) is CONSTRUED and
DISMISSED without prejudice as a successive Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255(h). Nance's Motion to Appoint Counsel (ECF No. 303)
is DENIED because the interests of justice do not so require.
See 18 U.S.C. § 3006A(a)(2)(B).