Order and Opinion — United States v. Stanley B. Jackson (N.D. Ga., Dkt. 153, filed 01/23/08)

Summary

Order and Opinion in the Atlanta Division on a post-judgment motion by Stanley B. Jackson, a federal prisoner seeking relief from his 1993 conviction and sentence under Rule 60(b). A jury convicted him of two firearms violations and he received two concurrent 293-month terms; the Eleventh Circuit affirmed, and four earlier motions under 28 U.S.C. 2255 were denied. He argued that the sentence enhancement was imposed without jurisdiction and that the indictment was void. The Court holds that Rule 60(b) cannot be used to challenge a criminal conviction, construes the motion as a second or successive 2255 motion filed without Eleventh Circuit authorization, and dismisses it without prejudice for lack of jurisdiction.

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“Order and Opinion — United States v. Stanley B. Jackson (N.D. Ga., Dkt. 153, filed 01/23/08).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-92-cr-00438-dkt-153-n-d-ga-63fe8adf61/, SHA-256 3a7723636d41a39dfd261cf74acbbedbebe9e23ed16a305760df0cd3599b11a5.

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Case 1:92-cr-00438-JEC-JMF Document 153 Filed 01/23/08 Page 1 of 4

FILED IN CHAMBERS
U.S, D .C . At lan ta

IN THE UNITED STATES DISTRICT COURT JAN 2 3 2008
FOR THE NORTHERN DISTRICT OF GEO ~$ HA~- .i.
N C
ATLANTA DIVISION ~~ ,/ J/J(/

UNITED STATES OF AMERICA, : : CRIMINAL ACTI NO.
: : 1 :92-CR-43 8-JEC
V.

STANLEY B . JACKSON, : : POST-JUDGMENT MOTION
Inmate # BOP Reg . 43178-019, : . FED. R. CIV . P . 60(b)
Defendant . ..

ORDER AN D OPINION

Movant, a federal prisoner, seeks relief from his 1993 conviction and sentence

in this Court . Now before the Court are Movant's Fed . R. Civ. P. 60(b)(6) Motion

[ 147], the Government's Response [ 151], and Movant's Reply [ 152] .

I. PROCEDURAL HISTORY

A jury convicted Movant of two firearms violations, and this Court sentenced

him to two concurrent 293-month terms of imprisonment . (Jury Verdict [48], May 5,

1993 ; J. [65], Sept. 9, 1993 ; see Rule 60(b)(6) Mot. [1. 47] at 2 .) The Eleventh Circuit

affirmed Movant's convictions and sentences on appeal . United States v . Jackson, 57

F .3d 1012, 1017-19 (11th Cir . 1995) (rejecting Movant's claims that this Court

erroneously enhanced his sentence pursuant to (a) U .S .S.G . § 4B1 .4, based on his

status as an armed career criminal, and (b ) U.S .S.G . § 4A1 .3, based on his 1984 Texas

assault conviction) . Since then, Movant has filed the equivalent of four 28 U .S .C .

AO 72A
Case 1:92-cr-00438-JEC-JMF Document 153 Filed 01/23/08 Page 2 of 4

§ 2255 motions to vacate his sentence [70, 91, 104, 108], all of which this Court has

denied, the last three as impermissibly second or successive [76, 98, 106, 109] .

On July 25, 2007, Movant executed the instant Rule 60(b)(6) motion, pro se,

claiming that (1) this Court erred when, without subject matter jurisdiction, it

enhanced his sentence by ninety instead of twenty-four months, pursuant to U .S .S .G.

§ 4A 1 .3, and, therefore, he is actually innocent of this excessive enhancement ; and

(2) this Court lacked jurisdiction to impose sentence upon him because the indictment

against him was void for failure to allege essential elements of the crime charged

therein - namely, the make and model of the firearm he was accused of possessing and

the mens rea element of the crime - or, in the alternative, because the Court

constructively amended the indictment in its charge to the jury. (Rule 60(b) Mot.

[147] at 4-16) . The Government responds that Movant's Rule 60(b) motion is, in

reality, another impermissibly second or successive § 2255 motion, which Movant

filed without the requisite authorization from the Eleventh Circuit, and which,

therefore, this Court must dismiss for lack of jurisdiction. (Resp. [151] at 4-7 .)

Movant replies that the instant Rule 60(b) motion should not be construed as a second

or successive § 2255 motion because he is challenging herein the jurisdiction of this

Court to convict and sentence him, and asserting claims that may not be barred due to

AO 7 2A
(ReY. 8/82)
Case 1:92-cr-00438-JEC-JMF Document 153 Filed 01/23/08 Page 3 of 4

either procedural default or untimeliness and, therefore, may be raised at any time via

any means available, including a Rule 60(b) motion . (Reply [152 at 1-7 .)

IL DISCUSSION

A federal prisoner may file a motion to vacate his or her sentence "upon the

ground that the sentence was imposed in violation of the Constitution or laws of the

United States, or that the court was without jurisdiction to impose such sentence, or

that the sentence was in excess of the maximum authorized by law, or is otherwise

subject to collateral attack ." 28 U.S .C . § 2255 ¶ 1 . A federal prisoner may not,

however, seek relief from a conviction or sentence via Fed . R. Civ. P . 60(b). See

United States v . Mosavi,138 F .3d 1365, 1366 {11th Cir .1998} (holding that defendant

could not challenge criminal forfeiture order via Rule 60(b) because "Rule 60(b)

simply does not provide for relief from judgment in a criminal case") . Moreover, once

a federal prisoner has filed a § 2255 motion that has been adjudicated on the merits,

he may not file a second or successive such motion without first obtaining

authorization from the appropriate United States Court of Appeals . See 28 U.S .C .

§ 2244(b)(3)(A), § 2255 ¶ 8 . See also Dune v. Sin leta , 168 F .3d 440, 442 {11th

Cir. 1999).

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(Rev .8/82)
Case 1:92-cr-00438-JEC-JMF Document 153 Filed 01/23/08 Page 4 of 4

It is apparent from the foregoing that Movant has attempted to circumvent the

restrictions on filing a second or successive § 2255 motion by filing a Rule 60(b)

motion instead . However, as noted above, a federal prisoner may not challenge a

conviction or sentence via Rule 60(b). See Mosavi, 138 F .3d at 1366 . Therefore, the

instant pleading must be construed as a § 2255 motion, which motion is impermissibly

I second or successive because there is no indication that Movant has obtained the

Eleventh Circuit's authorization to file it . Accordingly, this Court lacks jurisdiction

to consider the motion. See Hubbard v . Campbell, 379 F.3d 1245, 1247 (1 Ith Cir .

2004) .

IIL CONCLUS ION

For the foregoing reasons, Movant's Rule 60(b)(6) Motion [ 147], construed as

an impermissibly second or successive 28 U .S.C . § 2255 motion to vacate sentence,

is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction .

IT IS SO ORD ERED this -:~'<2-day of , 2008 .

9r~
IE E. CARVES
ITED STATES DISTRICT JUDGE

A O 72A
(Rev.8182)

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