United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court is a Motion for Relief from Judgment [doc. 147]
filed by defendant Courtney Donell Zeno, requesting that his
Motion to Vacate [doc. 115] be reopened. This motion was
referred to the undersigned for review, report, and
recommendation in accordance with the provisions of 28 U.S.C.
a jury trial, Zeno was convicted in this court of five counts
of distribution of cocaine base and one count of possession
with intent to distribute cocaine base, in violation of 21
U.S.C. §841(a)(1), and acquitted of one count of
distribution of cocaine base. Doc. 58; see doc. 1
(indictment). On August 21, 2010, he was sentenced to life
imprisonment. Doc. 80. He sought review in the United States
Court of Appeal for the Fifth Circuit, which affirmed in part
and vacated in part the district court's judgment. Doc.
106. The Fifth Circuit then remanded the case for
resentencing pursuant to Dorsey v. United States,
132 S.Ct. 2321 (2012). Id. On February 7, 2013, Zeno
was resentenced to concurrent terms of 240 months of
imprisonment on each count. Doc. 112.
January 22, 2014, Zeno filed a pro se motion to vacate in
this court pursuant to 28 U.S.C. § 2255, alleging that
he had received ineffective assistance of counsel. Doc. 115.
Zeno then filed a motion to stay/hold the § 2255 motion
in abeyance, noting that one of his claims was based on
counsel's alleged failure to inform him of his
opportunity to file a petition for writ of certiorari in the
United States Supreme Court. Doc. 118; see Lacaze v.
United States, 457 F.2d 1075, 1079 (5th Cir. 1972).
Accordingly, he wished to have his § 2255 proceedings
stayed while he pursued reopening his time period for filing
a petition for writ of certiorari by having the Fifth Circuit
recall its mandate from that court's previous judgment.
See doc. 118. After finding that Zeno's
allegations had merit, the district court granted a
certificate of appealability on the Lacaze claim and
ordered that the remaining claims would be stayed pending a
decision from the Fifth Circuit. Doc. 129. Zeno filed a
motion to recall mandate in the Fifth Circuit, which that
court granted on December 11, 2015, by affirming in part and
vacating in part the judgment of the district court as
before. Doc. 135. The Fifth Circuit also advised Zeno of his
renewed right to petition the Supreme Court for review.
who did not file a petition for writ of certiorari, then
filed a motion to withdraw his “pending and premature
§ 2255 motion” on April 27, 2016. Doc. 139. There
he argued that his first § 2255 motion was premature,
that his one-year time limit for seeking relief under §
2255 had been reset by the Fifth Circuit's withdrawal of
its mandate, and that the limitations period only began to
run in March 2016 when his time for seeking review in the
Supreme Court from the Fifth Circuit's December 2015
judgment expired. Id. The court ordered a response
from the government on the motion to withdraw. Doc. 140.
After that motion was fully briefed, however, it denied
Zeno's § 2255 motion on the merits without directly
addressing his motion to withdraw same. Docs. 144, 145. It
subsequently issued a memorandum order denying the motion to
withdraw and clarifying that it had considered that motion
before ruling on the § 2255 motion. Doc. 146.
now moves, under Rule 60(b)(6) of the Federal Rules of Civil
Procedure, for relief from judgment. Through this motion he
requests that the court reopen his § 2255 motion, and
alleges that the court erred in denying his request to
dismiss same so that “[h]is more elaborate and fuller
§ 2255, ” which would now face additional hurdles
as an untimely and/or successive motion, “never got an
opportunity to be heard.” Doc. 147, pp. 6-7.
Rule of Civil Procedure 60(b) allows the court to grant a
party relief from a final order or judgment based on several
grounds, including (as alleged here) “any . . . reason
that justifies relief.” Fed.R.Civ.P. 60(b)(6). In
Gonzalez v. Crosby, 125 S.Ct. 2641 (2005), the
Supreme Court held that a prisoner may use Rule 60(b) to
attack the dismissal of his § 2254 petition where his
Rule 60(b) motion attacks “some defect in the integrity
of the federal habeas proceeding” rather than
“the substance of the federal court's resolution of
a claim on the merits.” Id. at 2648. The Court
limited its holding to § 2254 petitions and emphasized
that § 2255 had separate rules governing second or
successive petitions. Id. at 2646 n. 3. Since that
time, however, the Fifth Circuit has repeatedly indicated its
willingness to apply Rule 60(b) to § 2255 proceedings
under the same principles announced in Gonzalez.
E.g., Williams v. Thaler, 602 F.3d 291, 302
& n. 4 (5th Cir. 2010); see also United States v.
Brown, 547 Fed. App'x 637, 641 (5th Cir. 2013)
(collecting cases). In this matter the Rule 60(b) motion
relates to the integrity of proceedings rather than the
court's resolution of the merits of a claim, based on
Zeno's contention that the court's refusal to allow
him to withdraw his § 2255 motion bars him from having a
subsequent motion considered on the merits. Accordingly, it
is properly brought and considered under Rule 60(b).
seeking relief under Rule 60(b)(6), a movant must “show
‘extraordinary circumstances' justifying the
reopening of a final judgment.” Diaz v.
Stephens, 731 F.3d 370, 374 (5th Cir. 2013) (quoting
Gonzalez, 125 S.Ct. at 2649). In determining whether
extraordinary circumstances exist, the court may consider a
wide range of factors. “These may include, in an
appropriate case, ‘the risk of injustice to the
parties' and ‘the risk of undermining the
public's confidence in the judicial process.'”
Buck v. Davis, 137 S.Ct. 759, 778 (2017) (quoting
Liljeberg v. Health Svcs. Acquisition Corp., 108
S.Ct. 2194, 2197 (1988)). The burden, however, remains on the
movant to demonstrate the extraordinary circumstances that
warrant this exceptional form of relief. E.g.,
Martin v. Fidelity Nat. Title, 2015 WL 770405, at *1
(E.D. La. Feb. 23, 2015) (citing Heirs of H.P. Guerra v.
United States, 207 F.3d 763, 767 (5th Cir. 2000)).
matter Zeno alleges exceptional circumstances based on the
potential injury to his ability to pursue collateral review
through a “more elaborate and fuller § 2255
motion.” Doc. 147, p. 7. However, he fails to show how
he would have supplemented his claims or what additional
claims he might have asserted if the court had granted his
motion to withdraw and allowed him another opportunity at
filing a first § 2255 motion. Furthermore, even if he
could show what changes he would have made to his § 2255
motion, we would not consider his burden met under Rule
60(b)(6) unless he could also show some merit to his
new/enhanced claims. Accordingly, ...