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 under 28 U.S.C. § 2255. 	(Doc. 5.)1 	The Court found that Movant’s post-conviction
challenge, primarily that the sentencing court erroneously applied the sentencing guidelines,
(1) was barred or prohibited under the law of the case doctrine (flowing from the enforcement of
an appeal waiver in the written plea agreement to the same challenge raised in Movant’s direct
appeal) and (2) was independently barred by the appeal/collateral-attack waiver in the written plea
agreement. (See generally id.) Eight months later, Plaintiff filed a pro se motion for post-judgment
relief under Rule 60(b)(6), (Doc. 7), which the Court dismissed on February 23, 2026, (Doc. 10).
The Court dismissed Plaintiffs’ Rule 60(b)(6) motion for relief, finding that the motion was, in
substance, a second or successive habeas or post-conviction motion and was therefore subject to
AEDPA’s precertification requirement. (See generally id.)
Now before the Court is Plaintiff’s pro se motion under Rule 59(e) of the Federal Rules of
Civil Procedure seeking reconsideration of the Court’s February 23, 2026 Order dismissing
Plaintiff’s pro se motion for relief under Rule 60(b)(6). (Doc. 11.) Plaintiff argues that the Court’s
finding that his pro se motion for relief under Rule 60(b)(6) was in substance a second or
successive habeas or post-conviction motion (and was therefore subject to dismissal in light of
1 On June 3, 2024, Movant filed, through counsel, a post-conviction motion challenging his
sentence imposed in the underlying criminal case, Case No. 6:19-cr-03160-RK-1, in which Movant was
sentenced to 408 months’ imprisonment after pleading guilty pursuant to a written plea agreement to one
count of conspiracy to distribute one kilogram or more of heroin and/or 400 grams or more of fentanyl in
violation of federal criminal law. (See generally Doc. 1.)
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AEDPA) was incorrect as a matter of law under Gonzalez v. Crosby, 545 U.S. 524 (2005). The
Court disagrees.
Movant’s pro se Rule 60(b)(6) motion for relief asserted that the initial post-conviction
Order should be vacated because (retained) post-conviction counsel “erroneously raised the very
same issues that he raised on [Movant]’s direct appeal,” and “[a]s a result,” the § 2255 motion was
denied, “depriving [Movant] not only of his first section 2255 [motion] but the rights that come
along with such vehicle for relief.” (Doc. 7 at 2.) Movant accordingly sought to vacate the prior
order denying his § 2255 motion to “restore his section 2255 motion/rights, because the error in
question was no fault of his own, but his hired counsel’s deficient performance.” (Id. at 3.)2
In substance, Movant’s pro se motion under Rule 60(b)(6) was not confined “to a nonmerits
aspect” of the federal habeas case. 	Gonzalez, 545 U.S. at 534. 	In Gonzalez, for example, the
Supreme Court found that the underlying Rule 60(b)(6) motion in the habeas case was not
equivalent to a second or successive habeas petition—but was confined to a “nonmerits aspect” of
the habeas proceeding and was therefore a proper Rule 60(b)(6) motion—to the extent it sought
relief on the basis that the habeas court’s ruling that the petition was barred by the statute of
limitations was incorrect. See id. at 536. Movant did not raise an analogous challenge in his Rule
60(b)(6) motion in this case.
To the contrary, Movant’s claim that post-conviction counsel was essentially ineffective in
his post-conviction case (as an extraordinary circumstance warranting post-judgment relief) “is
sufficiently similar to a habeas corpus application” and thus constitutes a second or successive
habeas petition subject to AEDPA. Williams v. Kelley, 858 F.3d 464, 470 (8th Cir. 2017) (holding
that Rule 60(b)(6) in a federal habeas action by a state prisoner that sought relief on the basis that
post-conviction counsel failed to conduct an adequate investigation into potential claims that were
not raised in the habeas petition); see United States v. Lee, 792 F.3d 1021, 1023 (8th Cir. 2015)
(“We have previously interpreted Gonzalez to provide that omissions by federal habeas counsel
are not procedural defects [in the integrity of a habeas proceeding].” (discussing Ward v. Norris,
577 F.3d 925 (8th Cir. 2009))). Movant did not argue, for example, that the claims asserted in his
§ 2255 motion were cognizable and were not barred by the law-of-the-case doctrine. 	Movant’s
2 Movant reiterated in his reply brief that “revers[ing] [the] previous judgment . . . would allow the
movant to file a section 2255 [motion] in the future . . . if he discover[ed] errors in his case . . . [or] if it’s
later discovered that his sentence and conviction is in violation of the Constitution.” (Doc. 9 at 9.)
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Rule 60(b)(6) motion is premised on the fact that the claims asserted are barred. Although Movant
did not assert any particular claim for relief challenging his federal conviction and sentence that
post-conviction counsel should have but did not raise, he effectively seeks to “undo” the filing and
the proceeding so that he can raise a § 2255 claim in the future should one be uncovered. “The
Supreme Court’s concern about circumventing AEDPA is no less present when a petition uses Rule
60(b) as the means for future filings that would circumvent AEDPA than when the motion itself
does so. The end result is the same, and impermissible in either case.” Bixby v. Stirling, 90 F.4th
140, 149-50 (4th Cir. 2024).
In short, the Court is not persuaded that the February 23, 2026 Order dismissing Movant’s
pro se Rule 60(b)(6) motion as, in substance, a second or successive motion subject to AEDPA
erroneously applied the law. 	Movant’s pro se motion for reconsideration under Rule 59(e) is
therefore DENIED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: May 21, 2026
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