United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Memorandum Opinion and Order entered on November 17, 2011,
the Court denied Michael F. Matthews's motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. (ECF Nos. 88-89.) Since that date, Matthews has
filed various attacks on his conviction and sentence.
November 17, 2016, the Court received from Matthews a
"MOTION FOR RELIEF FROM A JUDGEMENT [sic], ORDER, AND
PROCEEDING PURSUANT TO FED. R. CIV. P. 60(a), OR IN THE
ALTERNATIVE 60(d)(1)." ("Rule 60(a) or (d) Motion,
" ECF No. 203.) On December 12, 2016, the Court received
from Matthews a *REQUEST TO SUPPLEMENT'7 his Rule 60(a)
and (d) Motion. ("Request to Supplement, " ECF No.
in his Rule 60(a) or (d) Motion, Matthews offers little in
the way of legal argument for why his motion is appropriate
under Rule 60. At most, he recites the Court's authority
under Rule 60(a) and (d) . Instead, Matthews argues that the
Probation Officer made a "grievous mistake" leading
to the "misapplication of an inapplicable
cross-reference to the first degree murder guidelines."
(Rule 60(a) Mot. 1.) In reality, Matthews attacks the
application of this guideline to him, and thus, continues his
attack on the sentence he received.Despite labeling his motion a
Rule 60(a) or (d) Motion, as explained below, Matthews's
Rule 60(a) or (d) Motion 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 datekeeping
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
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 Ca1deron 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
[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, Matthews's
Rule 60(a) and (d) Motion raises challenges to his sentence
rather than any defects in his federal habeas proceedings.
Accordingly, the court must treat the Rule 60(a) and (d)
Motion as a successive § 2255 motion. The Court has not
received authorization from the United States Court of
Appeals to hear Matthews's successive § 2255 motion.
Accordingly, the Clerk will be directed to assign a civil
action number to and to file the Rule (a) and (d) Motion (ECF
No. 203) as a successive, unauthorized § 2255 motion.
The action will be dismissed for want of jurisdiction.
Request to Supplement (ECF No. 205), Matthews again requests
the Court to "relieve Petitioner from the February, 2007
judgment adopting the PSR and determine the basis" for
the murder cross-reference." (ECF No. 205.) Again,
Matthews does not challenge some error in his post-conviction
proceedings but from his sentencing and criminal judgment.
Accordingly, Matthews's Request to Supplement (ECF No.
205) will be denied as futile.
appeal may not be taken from the final order in a § 2255
proceeding unless a judge issues a certificate of
appealability (uCOA"). 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)). Matthews fails to
satisfy this standard. Accordingly, a certificate of
appealability will be denied.
Clerk is directed to send a copy of this Memorandum Opinion
to Matthews and counsel of record.
 Matthews also appears to challenge the
Court's denial of a reduction in his sentence for
substantial assistance in March of 2013. (Rule 60(a) Mot. 2.)
Matthews may not challenge the denial of a criminal motion