USA v. Brown et al

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL NO. 1:03CV251
(1:00CR69-5)
AMOS JUNIOR SCOTT, )
)
Petitioner, )
)
Vs. ) O R D E R
)
UNITED STATES OF AMERICA, )
)
Respondent. )
)
THIS MATTER is before the Court on Petitioner’s petition pursuant to
Federal Rule of Civil Procedure 60(b). Petition to Reopen and
Reconsider Prior Proceedings, filed January 12, 2009. For the reasons
stated herein, the petition is denied.
In September 2000, Petitioner was indicted for conspiracy to possess
with intent to distribute at least five kilograms of cocaine, in violation of 21
U.S.C. §§ 846 and 851. Bill of Indictment, filed September 11, 2000, at
1-2. Following a plea of not guilty, he was convicted by a jury. Verdict
Sheet, filed January 12, 2001, at 1. Because of his history of prior
convictions, including assault with a deadly weapon and possession of
Case 1:00-cr-00069-MR Document 166 Filed 01/26/09 Page 1 of 7

2
“rock” cocaine, Petitioner was deemed a career offender and received a
sentence of life imprisonment. Judgment in a Criminal Case, filed
September 13, 2001, at 2; United States v. Scott, 40 F. App’x 807, 808
(4 Cir. 2002) (detailing Petitioner’s prior convictions). Petitionerth
pursued an unsuccessful appeal. Scott, 40 F. App’x at 808, cert. denied,
537 U.S. 1140 (2003).
Petitioner then filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. Motion to Vacate, filed October
10, 2003. The undersigned denied the § 2255 motion and Petitioner’s
subsequent motion to alter or amend the judgment pursuant to Federal
Rule of Civil Procedure 59(e). Judgment, filed November 7, 2005, at 1;
Order, filed December 9, 2005, at 7. Petitioner appealed unsuccessfully.
United States v. Scott, 185 F. App’x 292 (4 Cir. 2006), cert. denied,th
127 U.S. 2909 (2007).
Petitioner has now filed a petition to reopen and reconsider prior
proceedings pursuant to Federal Rule of Civil Procedure 60(b). Rule 60(b)
provides, in pertinent part: “On motion and just terms, the court may relieve
a party . . . from a final judgment . . . [if] applying it prospectively is no
longer equitable; or any other reason that justifies relief.” Fed. R. Civ. P.
Case 1:00-cr-00069-MR Document 166 Filed 01/26/09 Page 2 of 7

3
60(b)(5) & (6). Rule 60(b), however, may not be misused as a backdoor
means of filing an unapproved successive § 2255 motion. Gonzalez v.
Crosby, 545 U.S. 524, 530-31 (2005). As the Fourth Circuit has
explained:
§ 2255 bars successive applications unless they contain claims
relying on “(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be sufficient
to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the
offense; or (2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.”
United States v. Winestock, 340 F.3d 200, 204 (4 Cir. 2003) (quotingth
28 U.S.C. § 2255). Furthermore, “a prisoner seeking to file a successive
application in the district court must first obtain authorization from the
appropriate court of appeals. . . . In the absence of pre-filing authorization,
the district court lacks jurisdiction to consider an application containing
abusive or repetitive claims.” Id. at 204-05.
As previously noted, the Petitioner has already filed one motion
pursuant to § 2255. Although the instant motion is styled as a Rule 60(b)
motion, if it is – in reality – a motion pursuant to § 2255, the undersigned
has no jurisdiction to entertain it unless it has been certified “by a panel of
the appropriate court of appeals.” 28 U.S.C. § 2255; see also Winestock,
Case 1:00-cr-00069-MR Document 166 Filed 01/26/09 Page 3 of 7

4
340 F.3d at 204-05. Therefore, in order to ascertain whether this Court
has jurisdiction to rule on the instant motion, the Court must first inquire as
to whether the motion is a successive § 2255 motion. See Winestock,
340 F.3d at 203 (“The ultimate question here is whether [Petitioner’s]
motion for [relief] should [be] treated as a successive collateral
review application.”). In such an analysis, the Court is guided by the
following language from Winestock:
[D]istrict 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.
. . .
[This] holding raises the question of how to distinguish a proper
Rule 60(b) motion from a “successive [application] in 60(b)’s
clothing.” There may be no infallible test for making this
distinction, but a relatively straightforward guide is that 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 or sentence.
Case 1:00-cr-00069-MR Document 166 Filed 01/26/09 Page 4 of 7

5
Winestock, 340 F.3d at 206-07 (emphasis added) (quoting Lazo v.
United States, 314 F.3d 571, 573 (11 Cir. 2002); other internalth
citations and quotations omitted).
Petitioner’s previous § 2255 motion argued that the jury verdict
should have contained a finding of drug quantities attributable solely to him
instead of to the conspiracy, citing United States v. Collins, 415 F.3d 304
(4 Cir. 2005). He now renews this argument in the instant motion. Theth
Court, however, thoroughly examined the same argument in ruling on
Petitioner’s motion to reconsider. See Order of December 9, 2005,
supra, at 3-7. As noted above, this ruling was sustained by the Fourth
Circuit and the Supreme Court.
The instant motion further argues that a recent ruling in a Fourth
Circuit case requires that a jury “properly determine the statutory threshold
quantity of cocaine attributable to [him].” Petition, supra, at 20-21 (citing
United States v. Brooks, 524 F.3d 549 (4 Cir. 2008)). However, Brooksth
“applies Collins as controlling precedent in this circuit.” Brooks, 524 F.3d
at 559 n.17. Inasmuch as Collins was controlling precedent in this Circuit
at the time Petitioner appealed the denial of his § 2255 motion and that
ruling was not overturned on appeal, it appears Petitioner’s arguments are
Case 1:00-cr-00069-MR Document 166 Filed 01/26/09 Page 5 of 7

6
unavailing. As stated previously by this Court, “[t]he fact that the law may
have changed in light of subsequent precedent, is an issue which the
Petitioner should pursue with the Fourth Circuit Court of Appeals.” Order
of December 9, 2005, supra, at 7 (emphasis original). The fact that he
has done so and the Fourth Circuit sustained this Court, is evidence that
Petitioner’s criminal conviction and sentence pass constitutional muster.
From these considerations, the Court concludes that Petitioner’s
latest motion is, in fact, a successive § 2255 petition and not a true Rule
60(b) motion. The Court can ascertain no other purpose for Petitioner’s
lengthy petition other than to challenge his underlying conviction and
sentence – even though Petitioner insists otherwise. See Petition, supra,
at 18, n.14 (“This brief is in no way an attempt to challenge the
underlying sentence or conviction. It is only presented to show that if
this court allows the reopening and further briefing of the prior
proceedings, petitioner’s claims are meritorious and deserve
reconsideration.”).
As the Fourth Circuit explained in Winestock, this Court lacks
jurisdiction to consider a successive § 2255 application containing
repetitive claims. 340 F.3d at 205. Rather, such a successive application
Case 1:00-cr-00069-MR Document 166 Filed 01/26/09 Page 6 of 7

7
must be presented in the first instance to the Fourth Circuit and not to this
Court. Id.
To the extent Petitioner submits claims previously raised on appeal
and in his § 2255 motion, the motion to reconsider is denied. To the extent
that he is seeking re-litigation of claims previously presented and rejected,
such are subject to the requirements for successive applications, that is,
they must first be presented to the Fourth Circuit.
IT IS, THEREFORE, ORDERED that the Petitioner’s petition to
reopen and reconsider prior proceedings pursuant to Federal Rule of Civil
Procedure 60(b) is hereby DENIED.
Signed: January 26, 2009
Case 1:00-cr-00069-MR Document 166 Filed 01/26/09 Page 7 of 7