Dailey v. USA

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
DERRICK E. DAILEY,
Movant,
v.
USA,
Respondent.
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Case No. 6:24-cv-03162-RK
ORDER
On January 16, 2025, the Court denied Movant’s motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. (Doc. 5.) A clerk’s judgment was entered on the same day.
(Doc. 6.) Approximately eight months later, on September 9, 2025, Movant filed a pro se motion
for relief pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure.1 (Doc. 7.) Movant
asserts that post-conviction counsel was ineffective and the Court should therefore set aside the
prior order denying his § 2255 motion for post-conviction relief and “restore [Movant’s] section
2255 motion/rights.” 	(See generally id.) The United States has filed a response, (Doc. 8), and
Movant has filed a pro se reply, (Doc. 9).
Under Rule 60(b)(6), the Court may reopen a judgment for “any other reason that justifies
relief.” In the context of habeas or post-conviction cases, post-judgment relief under Rule 60(b)
is available “to the extent it is not inconsistent with [the Antiterrorism and Effective Death Penalty
Act (“AEDPA”)].” Ward v. Norris, 577 F.3d 925, 932 (8th Cir. 2009) (citing Gonzalez v. Crosby,
545 U.S. 524, 529 (2005)). AEDPA bars second or successive § 2255 motions that do not rely on,
generally, “newly discovered evidence” or “a new rule of constitutional law.” § 2255(h)(1), (2).
As Movant alludes to in his pro se Rule 60(b)(6) motion, to file a second or successive motion a
movant must additionally receive prior certification by the appropriate circuit court of appeals.
§ 2255(h).
Movant’s Rule 60(b)(6) motion—arguing that post-conviction counsel was ineffective and
“erroneously raised the very same issues that he raised on . . . direct appeal”2—is in substance a
1 Movant had been otherwise represented by counsel in this post-conviction case.
2 In the initial § 2255 motion, Movant (through counsel) asserted a claim for relief that the sentence
imposed was unconstitutional because the Court erroneously overruled a number of his objections to the
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second or successive motion to vacate, set aside, or correct sentence, and is therefore subject to
AEDPA’s precertification requirement. See United States v. Lee, 792 F.3d 1021, 1023-25 (8th Cir.
2015) (finding that habeas petitioner’s Rule 60(b) motion was in substance a second or successive
§ 2255 motion because it sought “to reopen a claim which had been raised in his initial habeas
petition and decided by the district court” on the basis that post-conviction counsel was
“ineffective[] by not attaching important affidavits and other supporting evidence to his § 2255
petition”); Horton v. United States, No. 6:15-cv-03019-MDH, 2016 WL 11893930, at *1 (W.D.
Mo. Aug. 8, 2016) (finding that § 2255 movant’s Rule 60(b) motion “claiming he received
ineffective assistance of counsel in his § 2255 proceedings . . . is, in substance, a second or
successive habeas petition”).3 Because Movant has not obtained authorization from the court of
appeals to file a second or successive habeas petition, Movant’s pro se motion is DISMISSED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: February 23, 2026
PSR calculation at sentencing and erred in calculating the base offense level. 	(See generally Doc. 1.)
Movant did not assert a claim for ineffective assistance of trial or appellate counsel. The Court found
(1) Movant was not entitled to relief under § 2255 because he previously raised these sentencing errors on
direct appeal, and (2) alternatively, the appeal/collateral-attack waiver in the plea agreement applied. (See
generally Doc. 5.)
3 Movant cites several cases as establishing that “adequate counsel is also applied in post-conviction
matters as well.” (Doc. 7 at 2.) The cases Movant cites, however—Martinez v. Ryan, 566 U.S. 1 (2012),
and Trevino v. Thaler, 569 U.S. 413 (2013)—establish only that ineffective assistance of state post-
conviction counsel may establish cause to overcome procedural default for a federal habeas claim brought
under 28 U.S.C. § 2254. See Davila v. Davis, 582 U.S. 521, 528-29 (2017) (explaining that Martinez and
Trevino, together, establish that in certain circumstances a federal habeas claim by a state prisoner for
ineffective assistance of trial counsel is not barred by procedural default—i.e., because it was not first raised
in the state post-conviction proceeding—if the procedural default “results from the ineffective assistance
of the prisoner’s counsel in the [state] collateral proceeding”).
In addition, the Court notes that the crux of Movant’s Rule 60(b)(6) motion is that he seeks to
“reopen or re-establish his [initial] section 2255 rights” so that AEDPA’s second or successive bar under
§ 2255(h) will not apply should he wish to file a motion for relief under § 2255 in the future. (See Doc. 9.)
He does not affirmatively assert any cognizable ground for relief under § 2255 whether for ineffective
assistance of trial or appellate counsel or any other ground he contends post-conviction counsel should have
raised.
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