Order — No. 3:11-cr-00365 (Dkt. 2, W.D.N.C.)

Summary

An order in United States v. Stanley Benton, 3:11-cr-365-FDW-DCK-1, in the U.S. District Court for the Western District of North Carolina, Charlotte Division, filed October 20, 2021 as Document 2 in Civil Case 3:21-cv-00560-FDW (5 pages) and signed October 18, 2021. The Court recharacterizes the defendant's pro se Rule 36 motion to correct an error in judgment (Doc. No. 71) as a motion to vacate under 28 U.S.C. § 2255, and dismisses it for lack of jurisdiction because he lacks Fourth Circuit authorization for a successive motion. It denies his request for appointed counsel, declines to issue a certificate of appealability, and directs the Clerk to open the motion in a new civil case.

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“Order — No. 3:11-cr-00365 (Dkt. 2, W.D.N.C.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/order-no-3-11-cr-00365-dkt-2-w-d-n-c-320d4056cd/, SHA-256 f861d4a2fbd68402bd58c387f29c9afd7ac84e07407e378da48079d6ace6f1a2.

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cr-365-FDW-DCK-1

UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. )
) ORDER
STANLEY BENTON, )
)
Defendant. )
____________________________________ )

THIS MATTER comes before the Court on Defendant’s pro se “Motion to Correct Error

in Judgment Pursuant to the Fed. R. of Cr. P. Rule 36 or In the Alternative; Motion for the

Appointment of Counsel for this Rule 36 Issue,” (Doc. No. 71).

Defendant pleaded guilty to kidnapping and transporting a victim in interstate commerce,

for which he is serving a 188-month sentence. (Doc. Nos. 47, 48, 62, 66). He did not appeal.

In 2015, Defendant filed a § 2255 Motion to Vacate, Civil Case No. 3:15-cv-530. He

argued that counsel labored under a conflict of interest and failed to adequately represent him at

sentencing, and that the Government breached the plea agreement with regards to a three-point

reduction for timely acceptance of responsibility. The Court denied the Motion to Vacate on the

merits, Benton v. United States, 2015 WL 7431053 (W.D.N.C. Nov. 20, 2015), and the Fourth

Circuit Court of Appeals dismissed Defendant’s appeal on September 7, 2016, United States v.

Benton, 668 F. App’x 493 (4th Cir. 2016).

In the present “Motion to Correct…,” Defendant seeks relief from the criminal judgment

pursuant to Rule 36 of the Federal Rules of Civil Procedure, and requests the appointment of

counsel. He argues that the Court erred by failing to appoint substitute counsel and by accepting

Case 3:21-cv-00560-FDW Document 2 Filed 10/20/21 Page 1 of 5
his guilty plea and sentencing him despite disagreements with counsel. He asks the Court to

correct, as a clerical error, the calculation of his advisory guideline range that allegedly resulted

from the inaccurate plea agreement and counsel’s ineffective assistance at sentencing.

Federal Rule of Criminal Procedure 36 provides that, “[a]fter giving any notice it considers

appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of

the record, or correct an error in the record arising from oversight or omission.” Fed. R. Crim. P.

36. To be redressable under Rule 36, an error must be “purely clerical,” for instance, a recording

or scrivener’s error. United States v. Powell, 266 F. App’x 263 (4th Cir. 2008). A defendant may

not obtain Rule 36 relief based on a substantive error. United States v. Vanderhorst, 927 F.3d 824

(4th Cir. 2019). No recording or scrivener’s error is apparent in the instant case; the alleged errors

that the Defendant has identified are substantive challenges to his conviction and sentence.

Because the Motion directly challenges Defendant’s conviction and sentence, it will be

recharacterized as a § 2255 Motion to Vacate.1 United States v. Winestock, 340 F.3d 200, 207 (4th

Cir. 2003) (as a general matter “a motion directly attacking the prisoner’s conviction or sentence

will usually amount to a successive application, while a motion seeking a remedy for some defect

in the collateral review process will generally be deemed a proper motion to reconsider.”),

abrogated in part on other grounds by United States v. McRae, 793 F.3d 392 (2015); see also

Gonzalez v. Crosby, 545 U.S. 524, 531-33 (2005) (concluding that a Rule 60(b) motion for relief

from judgment that directly challenges the underlying conviction constitutes a successive § 2254

petition). The Clerk will thus be directed to file the Rule 36 Motion as a successive Motion to

Vacate pursuant to 28 U.S.C. § 2255 in a new civil case. See, e.g., United States v. Roberts, 2015

1
No warnings pursuant to United States v. Castro, 540 U.S. 375 (2003) are required before the Motion is
recharacterized because this is not Defendant’s initial § 2255.
2

Case 3:21-cv-00560-FDW Document 2 Filed 10/20/21 Page 2 of 5
WL 13649104 (E.D. Va. Aug. 19, 2015).

When an initial motion pursuant to § 2255 has been adjudicated on the merits, a second or

successive motion must be certified by the court of appeals before it may be filed with this Court.

28 U.S.C. § 2255(h). To certify a second or successive § 2255 motion for filing with this Court,

the court of appeals must find that the motion contains either: “(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 factfinder 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(h). Without such pre-

filing authorization, the district court lacks jurisdiction to consider a successive application. See

Winestock, 340 F.3d at 205. A second-in-time § 2255 motion will not, however, be successive

when “the facts relied on by the movant seeking resentencing did not exist when numerically first

motion was filed and adjudicated.” United States v. Hairston, 754 F.3d 258, 262 (4th Cir. 2014).

The Defendant does not allege that he has received authorization from the Fourth Circuit

Court of Appeals to file this Motion or that his claims were not previously ripe.2 Instead, he seeks

again to challenge the validity of his long-final conviction and sentence. Defendant’s § 2255 claims

fall squarely within § 2255(h)(2) and Defendant must receive authorization from the Fourth Circuit

before presenting them to this Court. Accordingly, this is an unauthorized successive § 2255

Motion to Vacate and it will be dismissed for lack of jurisdiction.

Defendant’s request for the appointment of counsel will also be denied. There is no

constitutional right to the appointment of counsel in § 2255 actions. Pennsylvania v. Finley, 481

2
A search of PACER reflects that no such authorization has been requested or granted.
3

Case 3:21-cv-00560-FDW Document 2 Filed 10/20/21 Page 3 of 5
U.S. 551, 555 (1987). The appointment of counsel in § 2255 proceedings is governed by the Rules

Governing § 2255 Proceedings, Rules 6(a) and 8(c), which mandate the appointment of counsel

where discovery is necessary or if the matter proceeds to an evidentiary hearing. The Court may

also appoint counsel to a financially eligible habeas petitioner if justice so requires. See 18 U.S.C.

§ 3006A(a)(2)(B). Defendant states no grounds to support his request for the appointment of

counsel. Neither discovery nor an evidentiary hearing appears to be required in this case and

Defendant has failed to demonstrate that the interests of justice warrant the appointment of counsel.

Therefore, his request for counsel will be denied.

IT IS, THEREFORE, ORDERED that:

1. Defendant’s pro se “Motion to Correct Error in Judgment Pursuant to the Fed. R. of

Cr. P. Rule 36 or In the Alternative; Motion for the Appointment of Counsel for this

Rule 36 Issue,” (Doc. No. 71) is recharacterized as a § 2255 Motion to Vacate. It is

DISMISSED for lack of jurisdiction and the request for the appointment of counsel is

DENIED.

2. The Clerk is instructed to open this Motion in a new civil case.

3. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of

appealability. See 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 338

(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims debatable

or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is denied on

procedural grounds, a petitioner must establish both that the dispositive procedural

ruling is debatable and that the petition states a debatable claim of the denial of a

Case 3:21-cv-00560-FDW Document 2 Filed 10/20/21 Page 4 of 5
constitutional right).

Signed: October 18, 2021

Case 3:21-cv-00560-FDW Document 2 Filed 10/20/21 Page 5 of 5

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