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Rank v. United States

United States District Court, N.D. Iowa, Central Division

October 23, 2017

RANDALL LEE RANK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER REGARDING PETITIONER'S MOTION PURSUANT TO RULE OF CIVIL PROCEDURE 60(b)(6)

          MARK W. BENNETT U.S. DISTRICT COURT JUDGE

         This case is before me on petitioner Randall Rank's July 27, 2017, Motion Under Federal Rules Of Civil Procedure Rule 60(b)(6) And (d)(1) (Rule 60(b) Motion). I find it helpful to provide some background to that motion.

         On July 17, 2006, Rank pleaded guilty in this court, pursuant to a plea agreement, to three counts of a five-count indictment. Somewhat more specifically, he pleaded guilty to conspiracy to manufacture and distribute 50 grams or more of actual methamphetamine and to distribute and possess with intent to distribute 500 grams or more of a mixture or a substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(A), 841(a)(1), 841(b)(1)(A) and 846, from about 2002 through September of 2004 (Count 1); manufacturing and attempting to manufacture 5 grams or more of pure methamphetamine during July of 2004 in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846 (Count 2); and manufacturing and attempting to manufacture 5 grams or more of pure methamphetamine during September of 2004 in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846 (Count 3). Prior to Rank's guilty plea, the prosecution filed a Notice Of Intent To Seek Enhanced Penalties Pursuant To 21 U.S.C. § 851 (§ 851 Information), seeking enhancement of Rank's mandatory minimum sentence, listing two prior felony drug offenses, one in Minnesota and one in Iowa, but seeking mandatory minimum sentences on the charged offenses based on only one prior conviction. On October 25, 2006, I sentenced Rank to the enhanced statutory mandatory minimum sentence of 20 years (240 months) of imprisonment, based on one prior felony drug conviction, [1] and judgment entered accordingly on October 30, 2006.

         Rank filed a Pro Se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aide, Or Correct Sentence By A Person In Federal Custody (§ 2255 Motion) on October 29, 2007, but never filed a supporting brief. In a Memorandum Opinion And Order Regarding Petitioner's § 2255 Motion (§ 2255 Ruling), filed October 14, 2009, I denied Rank's § 2255 Motion in its entirety and concluded that no certificate of appealability would issue for any claim or contention in this case. Judgment entered accordingly on October 14, 2009. Notwithstanding my denial of a certificate of appealability in both my § 2255 Ruling and in response to a subsequent Motion For Certificate Of Appealability, Rank filed a Notice Of Appeal on December 11, 2009. The Eighth Circuit Court of Appeals also denied a certificate of appealability and dismissed Rank's appeal on January 21, 2010, and its mandate issued on March 12, 2010.

         More than seven years after dismissal of the appeal of the denial of his § 2255 Motion, Rank filed his Rule 60(b) Motion. I conclude that Rank's Rule 60(b) Motion is a second or successive petition for habeas relief filed without permission of the Eighth Circuit Court of Appeals.

         As the Eighth Circuit Court of Appeals has explained,

[B]efore filing a second or successive petition in district court, a habeas applicant must receive an order authorizing it from the court of appeals. [28 U.S.C.] § 2244(b)(3). Under the statutory scheme, a second or successive habeas motion filed by someone in federal custody must also “be certified as provided in section 2244 by a panel of the appropriate court of appeals.” 28 U.S.C. § 2255(h).

United States v. Lee, 792 F.3d 1021, 1023 (8th Cir. 2015). Furthermore, “[i]t is well-established that inmates 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).

         Specifically, as to Rule 60(b) motions, the Eighth Circuit Court of Appeals has explained,

The Supreme Court has decided that AEDPA's procedural requirements for second or successive habeas petitions apply to motions for relief from a judgment filed under Federal Rule of Civil Procedure 60(b). Gonzalez [v. Crosby], 545 U.S. [524, ] 531, 125 S.Ct. 2641');">125 S.Ct. 2641 [(2005)]. The Gonzalez Court explained that Rule 60(b) motions often contain claims which are “in substance a successive habeas petition and should be treated accordingly.” 545 U.S. at 530- 31, 125 S.Ct. 2641');">125 S.Ct. 2641. The Court gave examples of such motions, one being an assertion that owing to excusable neglect “the movant's habeas petition had omitted a claim of constitutional error” and an accompanying request to present the claim. Id., citing Harris v. United States, 367 F.3d 74, 80-81 (2d Cir.2004). Another example is a motion attacking a “previous resolution of a claim on the merits.” 545 U.S. at 532, 125 S.Ct. 2641');">125 S.Ct. 2641 (emphasis in original).
A Rule 60(b) motion is not treated as second or successive under AEDPA, however, if it does not raise a merits challenge to the resolution of a claim in a prior habeas proceeding, but instead attacks “some defect in the integrity of the federal habeas proceedings.” Gonzalez, 545 U.S. at 532-33, 125 S.Ct. 2641');">125 S.Ct. 2641. Thus, the Rule 60(b) motion in Gonzalez which sought to challenge a statute of limitations ruling which had prevented review of an initial habeas petition, did not require precertification under § 2244(b)(3). Id. at 533, 538, 125 S.Ct. 2641');">125 S.Ct. 2641.

Lee, 792 F.3d at 1023.

         Here, Rank's Rule 60(b) Motion does not merely attack some defect in the integrity of the federal habeas proceedings, which would be an argument that could be properly asserted in a Rule 60(b) motion. Id. Rather, his Rule 60(b) Motion asserts claims of constitutional error in his underlying conviction that he never raised in his § 2255 Motion, but now wishes to present to the court, on the ground that his original pro se motion ineffectively presented the issues. I conclude that his Rule 60(b) Motion presents entirely new claims, so that his purported Rule 60(b) Motion is a second or successive habeas petition subject to the requirements of 28 U.S.C. § 2244(b)(3). Id.

         Specifically, in his original § 2255 Motion, Rank asserted three grounds for relief: (1) ineffective assistance of his trial counsel in failing to object to criminal history points, because “some of my convictions were related”; (2) ineffective assistance of his trial counsel in failing to object to mandatory application of the Sentencing Guidelines; and (3) ineffective assistance of his trial counsel in failing to object to his sentence on the basis that some of the drugs at issue were “impure.” § 2255 Ruling, 10-12. In his Rule 60(b) Motion, however, Rank now “tries to clarify th[e] point [that some of his convictions were related], and the basis for his 60(b) motion, [to be that] he alleged then and now, that his counsel failed to research one very important issue, that being whether his prior conviction used as the basis for a 21 U.S.C. § 851 enhancement did in fact qualify, thus allowing the Court to base its sentence on an unqualifying prior [conviction] that raised his mandatory sentence to 20 years.” Rule 60(b) Motion, 2. Somewhat more specifically, he argues that his prior Iowa conviction, used to enhance his mandatory minimum, was not a final ...


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