United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE
Memorandum Opinion and Order entered on December 17, 2014,
the Court denied on the merits a motion under 28 U.S.C.
§ 2255 filed by Clifford Noel. United States v.
Noel, No. 3:08CR186, 2014 WL 7239200, at *1-11 (E.D. Va.
Dec. 17, 2014.) By Memorandum Opinion and Order entered on
February 29, 2016, the Court denied a Rule 59(e) Motion filed
by Noel. United States v. Noel, No. 3:08CR186, 2016
WL 828107, at *1-2 (E.D. Va. Feb. 29, 2016.) On March 2,
2018, the Court received from Noel a COMBINED MOTION AND
MEMORANDUM OF LAW PURSUANT TO FED. R. CIV. P. 60(b)(3) and
(6) SEEKING RELIEF FROM THIS COURT'S FEBRUARY 19, 2015
MEMORANDUM OPINION AND ORDER DENYING HIS 28 U.S.C. §
2255 MOTION. ("Rule 60(b) Motion, ECF No. 301.") In
his Rule 60(b) Motion,  Noel contends that the Court should
vacate the denial of his § 2255 Motion due to fraud and
exceptional circumstances. However, Noel's Rule 60(b)
Motion also contains at least one claim that challenges his
underlying conviction and sentence. Accordingly, by
Memorandum Order entered on September 19, 2018, the Court
explained the following:
The 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). 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).
"[A] Rule 60(b) motion in a habeas proceeding that
attacks 'the substance of the federal court's
resolution of a claim on the merits' is not a true Rule
60(b) motion, but rather a successive habeas petition,"
and is subject to the preauthorization requirement of 28
U.S.C. § 2244(b)(3)(A) (2012). United States v.
McRae, 793 F.3d 392, 397 (4th Cir. 2015) (quoting
Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005)). By
contrast, "[a] Rule 60(b) motion that challenges
'some defect in the integrity of the federal habeas
proceedings' ... is a true Rule 60(b) motion, and is not
subject to the preauthorization requirement."
Id. (quoting Gonzalez, 545 U.S. at 531- 32)
. Where, however, the movant "presents claims subject to
the requirements for successive applications as well as
claims cognizable under Rule 60(b)," such a motion is a
mixed Rule 60 (b)/§ 2255 motion. Id. at 400
(quoting United States v. Winestock, 340 F.3d 200,
207 (4th Cir. 2003)).
Noel's Rule 60(b) Motion contains at least one claim that
challenges his underlying conviction and sentence and may be
a successive § 2255 motion. Noel argues that the Court
unconstitutionally interfered with his criminal proceedings.
(Rule 60(b) Mot. 13-20.) Because Noel has not obtained
authorization from the United States Court of Appeals for the
Fourth Circuit to file a successive § 2255 motion, this
Court lacks jurisdiction to entertain this portion of the
Rule 60 (b) Motion.
To the extent that Noel is not challenging his underlying
conviction or sentence but a perceived flaw in his §
2255 proceeding, that claim may not be successive. Thus, it
appears that the Rule 60(b) is a mixed Rule 60 (b)/§
2255 motion, see McRae, 793 F.3d at 397; Gonzalez,
545 U.S. 532 n.4, and the Court must afford Noel the
opportunity to elect between deleting his successive §
2255 claims or having his entire motion treated as a
successive § 2255 motion. See McRae, 793 F.3d
Accordingly, within thirty (30) days of the date of entry
hereof, Noel is directed to notify the Court whether he would
like to delete the improper claims or have the entire Rule
60(b) Motion treated as a successive application. Failure to
respond within thirty (30) days will result in dismissal of
the action without prejudice.
(ECF No. 310, at 2-4.)
has responded to the September 19, 2018 Memorandum Order. In
sum, Noel states: "I would like to have my improper
claims deleted, which would be the claim that challenges my
conviction and sentence." (ECF No. 312, at 1.) With the
improper claim or claims deleted,  the Court will proceed with
the motion as one filed under Federal Rule of Civil Procedure
RULE 60(b) MOTION
Essentially, Noel argues that he and his co-defendants paid
an individual to ghostwrite a § 2255 motion for them
without doing due diligence into his background, and, in
hindsight, is dissatisfied with the product he received.
(Rule 60(b) Mot. 3-5.) Noel argues that this is fraud under
Rule 60(b)(3) and because, there are "defects in the
integrity of the Court's ruling, Rule 60(b)(6) also
applies.'' (Rule 60(b) Mot. 1.)
seeking relief under Federal Rule of Civil Procedure 60(b)
must make a threshold showing of "'timeliness, a
meritorious defense, a lack of unfair prejudice to the
opposing party, and exceptional circumstances."'
Powell v. State Farm Fire & Cas. Auto. Ins. Co.,
993 F.2d 46, 48 (4th Cir. 1993) (quoting Werner v.
Carbo, 731 F.2d 204, 207 (4th Cir. 1984)). After a party
satisfies this threshold showing, "he [or she] then must
satisfy one of the six specific sections of Rule 60(b)."
Id. (citing Werner, 731 F.2d at 207). Noel
seeks relief under Rule 60(b)(3) and (6), hence, under
Federal Rule of Civil Procedure 60(c)(1) he was required to
file his motion within a reasonable time after the entry of
the December 17, 2014 Memorandum Opinion and Order.
Fed.R.Civ.P. 60 (c) (1) ("A motion under Rule 60(b) must
be made within a reasonable time-and for reasons (1), (2),
and (3) no more than a year after the entry of the judgment
or order or the date of the proceeding.7') Noel's
Rule 60(b) Motion, filed more than two years after the entry
of the challenged judgment, was not filed in a reasonable
time. See McLawhorn v. John W. Daniel & Co.,
Inc., 924 F.2d 535, 538 (4th Cir. 1991) ("We have
held on several occasions that a Rule 60(b) motion is not
timely brought when it is made three to four months after the
original judgment and no valid reason is given for the
delay." (citing Cent. Operating Co. v. Utility
Workers of Am., 491 F.2d 245 (4th Cir.1974); Consol.
Masonry & Fireproofing, Inc. v. Wagman Constr.
Corp., 383 F.2d 249 (4th Cir.1967))). Noel fails to
offer any persuasive argument as to why this Court should
find that his Rule 60(b)(3) or (6) Motion was filed within a
reasonable time. Cf. Fortune v. Clarke, 712
Fed.Appx. 296, 297 (4th Cir. 2018) (explaining that
determination of timeliness of a Rule 60(b) motion is
discretionary, not jurisdictional).
“[a] motion under [Rule] 60(b)(6) may not be granted
absent 'extraordinary circumstances."7 MLC
Auto., LLC v. Town of Southern Pines, 532 F.3d 269, 277
n.5 (4th Cir. 2008) (quoting Reici v. Angelone, 369
F.3d 363, 370 (4th Cir. 2004)), Noel fails to demonstrate
that extraordinary circumstances warrants review of the
Court's dismissal of his § 2255 Motion or that he
has a meritorious claim. At most, Noel's family made an
unwise investment in hiring an individual to ghostwrite his
§ 2255 Motion, but he fails to demonstrate any fraud
upon this Court or any other ...