United States District Court, D. Minnesota
M. Brennan, Assistant United States Attorney, Counsel for
Petitioner, pro se.
MEMORANDUM OPINION AND ORDER
Michael J. Davis United States District Judge
matter is before the Court on Petitioner's motion for
relief from a judgment pursuant to Federal Rule of Civil
Procedure 60(b) or pursuant to 28 U.S.C. § 2255 if none
has been submitted.
September 10, 2015, Petitioner pleaded guilty to Count 1 of
the Indictment which charged conspiracy to distribute more
than 1, 000 kilograms of a mixture and substance containing a
detectable amount of marijuana and 500 grams or more of a
mixture and substance containing a detectable amount of
cocaine, in violation of 21 U.S.C. Â§' 841(a)(1),
(b)(1)(A), (b)(1)(B) and 846.
an evidentiary hearing, the Court found the applicable
guideline range to be 188 to 235 months, based on a total
offense level 35, category II. The Court varied down from
this guideline range and sentenced Petitioner to a term of
imprisonment of 144 months, followed by a five-year term of
supervised release. Petitioner filed a Notice of Appeal, but
later moved to dismiss his Appeal, which motion was granted.
March 27, 2017, Petitioner filed a petition for relief
pursuant to 28 U.S.C. § 2255. This Court denied the
petition and declined to issue a certificate of
February 11, 2019, Petitioner filed the instant motion,
asking the Court to amend his presentence investigation
report (“PSR”) so that he may awarded time off
his sentence. He asserts that because his PSR references
firearms, dangerous chemicals and past convictions of a
certain type, as well as prior matters considered to be minor
escapes or escapes, Petitioner will not receive credit for
completing the BOP R-DAP program that is ordinarily awarded.
He thus requests the Court issue an order that the PSR be
amended by “deleting any such mention of any items
which the BOP would use as a predicate to exclude Petitioner
from being among those eligible for and entitled to R-DAP
programming and its incentive reward of time credit (time
off) upon successful completion of the intensive and life
altering, views altering, enlightening program.” (Doc.
No. 420 at 1-2.)
Standard of Review
moves for relief pursuant to Fed.R.Civ.P. 60(b), which
provides, in relevant part, that “[o]n motion and just
terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding
for the following reasons: . . . (6) any other reason
justifying relief.” A[R]elief under rule 60(b)(6)
remains 'an extraordinary remedy' for
'exceptional circumstances.'" City of Duluth
v. Fond du Lac Band of Lake Superior Chippewa, 702 F.3d
1147, 1155 (8th Cir. 2013).
petitioner files a motion pursuant to Rule 60 following the
dismissal of his habeas petition, the Court is to conduct a
brief initial inquiry to determine whether the allegations in
the Rule 60(b) motion in fact amount to a second or
successive collateral attack under 28 U.S.C. § 2255.
Boyd v. United States, 304 F.3d 813, 814 (8th Cir.
2002). This inquiry is necessary because the law is clear
that a petitioner “may not bypass the authorization
requirement of 28 U.S.C. § 2244(b)(3) for filing a
second or successive § 2254 or § 2255 action by
purporting to invoke some other procedure.” United
States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005).
Section 2255 provides that prior to filing a successive
petition for relief, the petitioner must first move in the
appropriate court of appeals for an order authorizing the
district court to consider the application. 28 U.S.C. §
Court finds that the motion before it is a successive
petition under § 2255. In his motion, Petitioner cites
to United States v. Fraley, No. 15-188, 2007 WL
1876455 (E.D. Ky June 27, 2007) to support his claim that
this Court can order his PSR amended to delete references to
possession of firearms or other references that affect his
eligibility for early release upon completion of the R-DAP
program. In Fraley, the court granted the requested
relief, pursuant to § 2255, on the bases that the
government did not object to the motion, and because the
record was clear that the court intended the petitioner would
be released early upon completion of the R-DAP program and
sentenced the petitioner based on such intention.
Id. at 5 (“Based on the excerpt from
Fraley's sentencing transcript . . . it is clear that it
was the court's intention in sentencing Fraley that she
would be entitled to early release if she successfully
completed the RDAP. . . . In essence, the court imposed a
three-year sentence, with the idea in mind that if Fraley
completed the RDP, she would be eligible for one-year credit
off this sentence, resulting in a net sentence of two
years.”); see also Hickerson v. Willingham,
No. 3:06-cv-777, 2006 WL 3422186 (D. Conn. Nov. 28, 2006)
(court found that petitioner challenging BOP determination to
deny her early release based on prior robbery conviction
should seek relief pursuant to §2255).
did not move in the appropriate court of appeals for an order
authorizing the district court to consider his motion as
required under § 2255(h). As a result, dismissal ...