The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District
Pending before the Court is Petitioner's Motion to Relief from
Judgment and to Modify Sentence Pursuant to Fed.R.Civ.P. 60(b)
("Petitioner's Motion") [# 186]. Upon careful consideration of
the petitioner's motion, and the entire record herein, the Court
will dismiss the motion.
The Federal Bureau of Investigation ("FBI") initiated Operation
Wild Horse to target heroin importation and distribution in the
Washington area. During the course of this operation, the FBI
apprehended Petitioner, Olurotimi Olatunde Layeni. On October 28,
1994, a jury convicted Petitioner of conspiracy to distribute and
possession with intent to distribute heroin, as well as multiple
counts of heroin distribution in violation of 21 U.S.C. §§ 846,
841(a)(1), respectively. Judge Norma H. Johnson sentenced
Petitioner to 210 months of imprisonment on each count, to run
concurrently. The Court of Appeals for the D.C. Circuit affirmed
the conviction and sentence on July 30, 1996. United States v.
Layeni, 90 F.3d 514 (D.C. Cir. 1996).
On January 23, 1998, Petitioner filed a motion to vacate, set
aside, or correct a sentence pursuant to 28 U.S.C. § 2255 [#
155], arguing that the court, by sentencing him to 210 months in prison, improperly applied the United States Sentencing
Guidelines ("U.S.S.G." or "Sentencing Guidelines"). The Court
denied Petitioner's § 2255 motion by Order dated August 9, 1999
[# 164]. On June 21, 2000, Petitioner filed a motion for
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) [# 176],
where he argued that the retroactive application of an amendment
to the Sentencing Guidelines necessitated a reduction of his
sentence. The Court denied the motion by Order dated March 21,
2003 [# 184].
On September 13, 2004. Petitioner filed the instant motion. The
thrust of Petitioner's argument is that the Court calculated
Petitioner's sentence based on its own finding of the quantity of
heroin involved in his crime, a fact that the government never
proved before a jury. Further. Petitioner argues that the
government failed to prove before a jury that he managed or
supervised the criminal activity in question, rendering
inappropriate the offense level increase he received pursuant to
U.S.S.G § 3B1.1(b). As the basis for his argument, Petitioner
cites a United States Supreme Court case, Blakely v.
Washington, for the proposition that every defendant has the
right to insist that the prosecutor prove to a jury all facts
legally essential to his punishment. 124 S. Ct. 2531, 2543 (June
24, 2004) ("The Framers would not have thought it too much to
demand that, before depriving a man of . . . more . . . liberty,
the State should suffer the modest inconvenience of submitting
its accusation to `the unanimous suffrage of twelve of his equals
and neighbours,' 4 Blackstone, Commentaries, at 343, rather than
a lone employee of the State.").*fn1
Petitioner's motion is, in effect, a second successive motion
under 28 U.S.C. § 2255. In this motion, Petitioner requests a review of his sentence
pursuant to Fed.R.Civ.P. 60(b), but, as with his previous
motion, Petitioner argues that the Court calculated his sentence
improperly according to the Sentencing Guidelines. Because the
Petitioner's motion is substantively a second or successive
motion pursuant to 28 U.S.C. § 2255, and because the petitioner
failed to obtain certification for the motion from the D.C.
Circuit the Court will deny the motion.
A. Petitioner's Motion is Substantively a Third Motion
Pursuant to 28 U.S.C. § 2255
A court must determine the proper characterization of a motion
by the nature of the relief sought. See United States v.
Palmer, 296 F.3d 1135, 1145 (D.C. Cir. 2002) ("District courts
should not re-characterize a motion purportedly made under some
other rule as a motion made under § 2255 unless . . . the court
finds that, notwithstanding its designation, the motion should be
considered as made under § 2255 because of the nature of the
relief sought. . . ." (emphasis added)). Therefore, a motion
functionally equivalent to a § 2255 motion to vacate, set aside,
or correct a sentence will be construed as such, when
appropriate, regardless of the caption on the pleading. See
Palmer, 296 F.3d at 1145 (acknowledging that the district court
had authority to re-characterize a motion for a new trial as a
motion under § 2255); see also United States v. Williams, No.
00-3165, 2001 WL 238115, at *1 (D.C. Cir. Feb. 7, 2001) (district
court properly re-characterized a motion pursuant to Fed.R. Civ.
P. 60(b) as a motion pursuant to § 2255); United States v.
Rich, 141 F.3d 550, 551 (5th Cir. 1998) (noting the recent trend
among circuits to treat certain motions filed under Rule 60(b) as
motions pursuant to § 2255).
In the motion now before the Court, Petitioner challenges the
legality of his sentence, arguing that the Court improperly used
factors not proven before a jury to reach his sentence. Petitioner's Motion at 1.*fn2 The petitioner bases his right
to seek review of his sentence on Fed.R.Civ.P. 60(b). Id.
Rule 60(b) permits the court to grant relief from a final
judgment for "any [other] . . . reason justifying relief from the
operation of the judgment [in addition to the first five reasons
listed in the rule]." Fed R. Civ. P. 60(b)(6). As the Fifth
Circuit noted in United States v. Rich, courts have recently
followed a trend "to treat motions by federal prisoners to set
aside their convictions on constitutional grounds as § 2255
motions, regardless of the label affixed to the motion." United
States v. Rich, 141 F.3d at 551. Accordingly, even though
Petitioner styled his motion as filed pursuant to Rule 60(b),
because it amounts to an attack on the constitutionality of his
sentence in light of the Supreme Court's decision in Blakely,
this Court will treat the Rule 60(b) motion as a § 2255 motion to
vacate, set aside, or correct a sentence. The Court is not required to notify Petitioner of this decision
prior to its re-characterization of the instant motion. In
Palmer, the Court of Appeals for the D.C. Circuit held that a
district court's re-characterization of a motion as a § 2255
motion "will not count as a `first' habeas motion sufficient to
trigger AEDPA's gate-keeping requirements" unless: (1) "the
movant, with knowledge of the potential adverse consequences of
such re-characterization, agrees to have the motion so
re-characterized," or (2), after being advised of the
consequences of non-response to notification of
re-characterization, the movant fails to respond within a
specified time period. 296 F.3d at 1145-46; see also
discussion, infra, Part B, pp. 5-6 (regarding gate-keeping
requirements of 28 U.S.C. § 2255). As the D.C. Circuit recognized
in In re: Lorenzo Conyers, however, a district court need not
follow the procedures outlined in Palmer when the defendant has
"already filed two motions expressly based on Section 2255 prior
to the filing of the motion at issue. . . ." In re: Lorenzo
Conyers, No. 03-3035, 2003 U.S. App. LEXIS 10395 at * 1-2 (D.C.
Cir. May 22, 2003). Though the Petitioner here filed only one
motion expressly based in § 2255 before the instant motion, the
policy consideration here is identical to that of the Conyers
case, and therefore its logic and holding may be extended to
In holding that the re-characterization of a federal prisoner's
motion as a motion pursuant to § 2255 would not count as a
"first" § 2255 motion under the Antiterrorism and Effective Death
Penalty Act ("AEDPA"), the D.C. Circuit, in Palmer, was
concerned with AEDPA's procedural bar to second or successive
motions and the harm these procedural bars may cause federal
prisoners if unaware that the bars were, in fact, triggered.
See 296 F.3d at 1146; see also 28 U.S.C. § 2255: discussion.
infra, Part B, pp. 5-6. Where a federal prisoner filed even one
motion expressly based in § 2255, as is the case here, the
procedural bars contained in the AEDPA are already triggered. Therefore, the Petitioner, who filed
one § 2255 motion prior to the instant motion and, thus, was
aware of the procedural bars to filing a second or successive §
2255 motion, is not entitled to the notification procedures
outlined in Palmer before this Court re-characterizes his
"Motion to Relief from Judgment and to Modify Sentence Pursuant
to Fed.R.Civ.P. 60(b)" as a motion to vacate, set aside, or
correct a sentence pursuant to § 2255.
B. Petitioner Failed to Obtain Certification for the Motion
from the Court of Appeals for the D.C. Circuit.
Once re-characterized, this motion represents Petitioner's
second motion filed pursuant to § 2255, and, as such, constitutes
a successive motion requiring certification from a panel of the
D.C. Circuit. See 18 U.S.C. § 2255. Section 2255 states that,
A second or successive motion must be certified as
provided in § 2244 by a panel of the appropriate
court of appeals to contain: (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
fact-finder 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.
28 U.S.C. § 2255. Before a petitioner obtains such certification,
a district court lacks jurisdiction to entertain a second or
successive § 2255 motion. See United States v. Lawrence, No.
97-3164, 1998 WL 203115, at *1-2 (D.C. Cir. April 15, ...