United States District Court, E.D. Virginia
E. Payne Richmond, Virginia Senior United States District
Memorandum Opinion and Order entered on February 20, 2015,
the Court denied on the merits a motion under 28 U.S.C.
§ 2255 filed by Spencer Peters. United States v.
Peters, No. 3;O8CRI86, 2015 WL 749917, at *1-11 (E.D.
Va. Feb. 20, 2015.) On February 12, 2018, the Court received
from Peters 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. 300.") In his Rule 60(b) Motion,
Peters contends that the Court should vacate the denial of
his § 2255 Motion due to fraud and exceptional
circumstances. However, Peters'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 24, 2018, the Court explained the
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)).
Peters's Rule 60(b) Motion contains at least one claim
that challenges his underlying conviction and sentence and
may be a successive § 2255 motion, Peters argues that
the Court unconstitutionally interfered with his criminal
proceedings. (Rule 60(b) Mot. 13-20.) Because Peters 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 Peters 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 Peters 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 400.
Accordingly, within thirty (30) days of the date of entry
hereof, Peters 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. 311, at 2-4.)
has responded to the September 24, 2018 Memorandum Order. In
sum, Peters states: "I would like to delete my improper
2255 claim that's challenging my conviction and
sentence." (ECF No. 314, 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 60(b).
RULE 60(b) MOTION
Peters 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.) Peters 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). Peters 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 February 20, 2015 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.")
Peters'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))). Peters
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.'" MLC
Auto., LLC v. Town of Southern Pines, 532 F.3d 269, 277
n.5 (4th Cir. 2008) (quoting Reid v. Angelone, 369
F.3d 363, 370 (4th Cir. 2004)). Peters 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, Peters'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 ...