United States District Court, E.D. Virginia, Richmond Division
Hannah Bauck Judge
Adib Eddie Ramez Makdessi was convicted in the Circuit Court
for City of Virginia Beach and "is currently serving two
life sentences for first-degree murder for the May 14, 1996
killings of Elise Makdessi, his wife, and Quincy Brown,
Elise's co-worker at Naval Air Station Oceana" and
an additional thirteen years for two firearm crimes.
Makdessi v. Watson, 682 F.Supp.2d 633, 636 (E.D. Va.
2010). By Memorandum Opinion and Order entered on February 4,
2010, this Court denied Makdessi's petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See
Id. at 657; (ECF Nos. 17, 18). On June 28, 2010, the
Court received from Makdessi a submission entitled
"Criminal Complaints & MOTION Rule 60(b)." (ECF
No. 24.) Despite being labeled in part as a Federal Rule of
Civil Procedure 60(b) motion, the submission appeared to be a
reference copy of a document Makdessi filed with the Court
sent to the "Chief Division Counsel, Richmond
F.B.I." and other federal officials that lodged
complaints about the criminal process. (See Id. at
1.) By Memorandum Order entered on July 6, 2010, the Court
construed this submission to be Makdessi's attempt to
file a criminal complaint and informed Makdessi that it would
take no further action on his submission. (ECF No. 25.)
November 2, 2015, the Court received from Makdessi a
"MOTION 60(b) Fraud Upon The Court and Fraud Upon The
Habeas Court." (ECF No. 39.) Makdessi listed nine
repetitive claims essentially arguing that he is actually
innocent of his crimes of conviction and that the prosecution
tampered with or "covered-up" purportedly
exculpatory evidence. (See, e.g., Id. at i.) Despite
labeling his motion as a Rule 60(b) Motion, Makdessi
continued to attack his state convictions. By Memorandum
Opinion and Order entered on June 16, 2016, the Court
dismissed the Rule 60(b) Motion as a successive, unauthorized
28 U.S.C. § 2254 petition. (ECF Nos. 46, 47.)
26, 2017, the Court received from Makdessi a "Motion
Rule 60(d)(1) and (d)(3), " in which he purports to
"invok[e] this Court's jurisdiction ... for fraud
upon the initial federal habeas court and grave miscarriage
of justice." (ECF No. 57, at l.) On August 11, 2017, the
Court received a second "Motion Rule 60(d)(1) and
(d)(3)" from Makdessi. ("Rule 60(d) Motion, "
ECF No. 60.) Makdessi indicates, "[t]his 16 pages Motion
is to substitute the 15 pages Motion in Docket 57, with the
same Exhibits in Docket 57 apply to this Motion." (Rule
60(d) Mot. 1.) The Court will substitute the August 11, 2017
Rule 60(d) Motion for the motion submitted on June 26, 2017.
The August 11, 2017 Rule 60(d) Motion will SUPPLANT the
previously filed motion. Accordingly, the action now proceeds
on the August 11, 2017 Rule 60(d) Motion only. The Clerk will
be DIRECTED TO TERMINATE the motion submitted on June 26,
2017 (ECF No. 57).
Rule 60(d) Motion, Makdessi once again lists eleven
"frauds" that, in essence, assert his innocence,
and argues that the prosecution "deliberate[ly]
cover[ed]-up ... exculpatory evidence." (Rule 60(d) Mot.
4, 5-16.) Despite labeling the motion as one brought pursuant
to Rule 60(d), Makdessi again attacks his state convictions.
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).
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.'" United
States v. WinestocK 340 F.3d 200, 206 (4th Cir.
2003) (quoting Calderon v. Thompson, 523 U.S. 538,
553 (1998)). Additionally, the Fourth Circuit has provided
the following guidance in distinguishing between a proper
Rule 60(b) motion and 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 (citations omitted). Here, Makdessi's
Rule 60(d) Motion raises challenges to his Virginia Beach
convictions, rather than any defects in his federal habeas
proceedings. Makdessi argues that he is actually innocent of
his state convictions and enumerates purported errors that
occurred during his state trial. 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 on the motion). Accordingly, the
Court must treat the Rule 60(d) Motion as a successive §
2254 petition. Cf. United States v. Merica, Nos.
5-.04CR00015, 5:11CV80375, 2011 WL 6325881, at *1 (W.D. Va.
Dec. 16, 2011) (construing action under Fed.R.Civ.P. 60(d) as
a successive § 2255 motion). The Court has not received
authorization from the Fourth Circuit to file the present
§ 2254 petition. Therefore, the action will be DISMISSED
WITHOUT PREJUDICE for want of jurisdiction.
has also filed a Motion for the Appointment of Counsel. (ECF
No. 58.) No constitutional right exists to have counsel
appointed in post-conviction proceedings. Mackall v.
Angelone, 131 F.3d 442, 449 (4th Cir. 1997). The Court,
however, may appoint counsel to a financially eligible person
if justice so requires. See 18 U.S.C. §
3006A(a)(2)(B). Makdessi fails to demonstrate that the
interests of justice warrant the appointment of counsel at
this juncture. Accordingly, Makdessi's Motion for the
Appointment of Counsel (ECF No. 58) will be DENIED.
appeal may not be taken from the final order in a § 2254
proceeding unless a judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate
of appealability 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
While Makdessi adds statements such as, the "Officers of
the Courts covered-up from all Courts... exculpatory
evidence" in his federal habeas proceedings (see,
e.g., Rule 60(d) Mot. 6), Makdessi raises no true defect
in the collateral review process. At most, he appears to
argue, unsuccessfully, that false evidence presented by the
prosecutors and exculpatory evidence allegedly hidden by them
during his criminal proceedings rendered his federal habeas
proceedings unfair. (See, e.g., Id. at 4.) proceed
further.'" Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983)). Because Makdessi fails to satisfy
this standard, a certificate of appealability will be DENIED.
appropriate Order shall issue.