United States District Court, D. Minnesota
M. Hollenhorst, Esq., United States Attorney's Office,
Minneapolis, MN, on behalf of Plaintiff.
Smith, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE.
matter is before the undersigned United States District Judge
for a ruling on Defendant Tracey Smith's
(“Smith”) Motion Under Rule 60(b) [Docket No.
323] (the “Motion”) and Motion to Amend his
Pending Rule 60(b) Motion [Docket No. 328]. For the reasons
set forth below, the Motions are denied.
was one of five individuals charged in a multi-count
Indictment alleging narcotics-related offenses. See
Indictment [Docket No. 1]. On April 4, 2011, Smith pled
guilty to Count 1 of the Indictment, conspiracy to distribute
cocaine base, and was sentenced to 188 months imprisonment
followed by five years of supervised release. See
Min. Entry [Docket No. 181]. The term of imprisonment was a
downward departure from the United States Sentencing
Guidelines (the “Guidelines”) range of 262 to 327
months. Presentence Investigation Report (“PSR”)
Smith did not directly appeal his sentence, he has filed at
least four post-conviction motions. His first motion, brought
under Federal Rule of Criminal Procedure 35, argued that he
was entitled to a sentence reduction for providing
substantial assistance to the Government. See Mot.
Reduction Sentence [Docket No. 250]. That motion was denied.
See Order [Docket No. 253]. On March 17, 2014-almost
two and half years after judgment was entered in his
case-Smith filed a motion entitled “Motion For Leave To
File Direct Appeal” [Docket No. 256]. Recognizing that
his time for filing a direct appeal long since expired, Smith
nevertheless argued that the deadline should be extended
because his attorney failed to timely file an appeal.
See Mem. [Docket No. 257]. This motion was also
denied. See Order [Docket No. 258]. On February 23,
2015, Smith filed another motion seeking a sentence
reduction. See Mot. [Docket No. 265]. This motion
was predicated on Amendment 782 to the Guidelines, which
retroactively reduced by two levels some drug quantity base
offense levels under U.S.S.G. § 2D1.1. The Amendment,
however, did not effectuate a sentence reduction because
Smith was sentenced as a career offender under U.S.S.G.
§ 4B1.1. See Letter [Docket No. 281].
February 17, 2016, Smith filed his first Motion to Vacate
Under § 2255 [Docket No. 288]. Smith argued that under
Johnson v. United States, 135 S.Ct. 2551 (2015), two
prior convictions no longer qualified as crimes of violence
under the career offender provisions of the Guidelines. That
motion was denied for procedural reasons and on the merits.
See Mem. Op. Order [Docket No. 299] (“March
28, 2016 Order”). On May 13, 2016, Smith appealed the
March 28, 2016 Order. See Appeal [Docket No. 301].
That same day, Smith filed another § 2255 Motion,
raising essentially the same arguments that were previously
unsuccessful. See Mot. Vacate § 2255 [Docket
No. 305]. That motion was denied because Smith had not
received permission from the Eighth Circuit Court of Appeals
to file a successive motion brought under § 2255.
See Order [Docket No. 308]. Smith appealed that
decision, too. See Appeal [Docket No. 310]. The
Eighth Circuit was unpersuaded in both instances, and
Smith's two appeals were rejected. See J. USCA
[Docket No. 314].
9, 2017, Smith filed the present Motion under Federal Rule of
Civil Procedure 60(b). Smith again argues that his sentence
should be reduced because he was incorrectly determined to be
a career offender. On August 24, 2017, Smith filed the Motion
to Amend his Pending Rule 60(b) Motion. In this filing, Smith
raises nine factual defects that he argues require him to be
argues that a prior conviction for aggravated robbery was
erroneously referred to as aggravated bank robbery, and that
this error places him outside of the career offender
may grant relief under Rule 60(b) for any “reason that
justifies relief.” Fed.R.Civ.P. 60(b)(6). It is,
however, “well-established that inmates may not bypass
the authorization requirement of . . . § 2255 action by
purporting to invoke some other procedure.” United
States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005).
When a petitioner requests Rule 60(b) relief, the motion must
be assessed to determine whether it is more properly
characterized as a § 2255 petition. See, e.g.,
United States v. Borrero, Nos. 03-281, 08-1160, 2010
WL 3927574, at *1 (D. Minn. Oct. 5, 2010). A Rule 60(b)
motion may be considered a second or successive § 2255
petition if it “attacks the federal court's
previous resolution of a claim on the merits.”
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). A
motion will not be characterized as a second or successive
§ 2255 petition if it “attacks . . . some defect
in the integrity of the federal habeas proceedings.”
Motion and the Motion to Amend are properly characterized as
a successive § 2255 petition. The Motion challenges
Smith's career offender enhancement on the ground that a
prior conviction does not qualify as a crime of violence
under the career offender provisions. This was directly
presented in the March 28, 2016 Order upholding Smith's
career offender enhancement based on his prior felony
convictions. See March 28, 2016 Order. The Motion to
Amend raises arguments that are also beyond the scope of Rule
60 and are properly cognizable under § 2255. Since Smith