ROBERT E. WIER, Magistrate Judge.
Defendant/Movant, William Cook, proceeding pro se, moves for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). DE #99 (Motion). Cook seeks relief from a prior judgment of the Court denying his motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Id. The United States responded to the motion (DE #101), and Cook replied (DE #104). Per normal District practice, the matter was referred to the undersigned for a recommended disposition.
After reviewing the record and applicable law, the Court RECOMMENDS that the District Court TRANSFER Cook's motion (DE #99) to the Sixth Circuit. For the reasons set forth below, the Court finds that Cook's motion, although denominated a motion for relief from judgment under Rule 60(b), constitutes a second or successive § 2255 motion, and, at this stage, it is not certified as required by § 2255(h). Alternatively, the Court recommends that the District Court deny Cook's motion for Rule 60(b) relief.
I. Background Information
A federal grand jury indicted Cook on November 30, 2006. DE #1 (Indictment). The single count of the indictment charged Cook with knowingly transporting a fourteen-year-old minor female from Ohio to Kentucky with the intent that the minor engage in sexual activity, a violation of 18 U.S.C. § 2423(a). Id. Cook proceeded to trial on the charge, and a jury found him guilty on March 14, 2007. See DE #34 (Verdict Form). On June 22, 2007, the District Judge sentenced Cook to 292 months of imprisonment and a lifetime term of supervised release. See DE #42 (Sentencing Minute Entry); DE #46 (Judgment).
Cook timely appealed to the Sixth Circuit, arguing that there was insufficient evidence that his intent in traveling across state lines was to engage in sexual activity with the minor child. See DE #49 (Notice of Appeal); DE #58 (Order). The Sixth Circuit rejected Cook's argument and affirmed his conviction. DE #58. Cook did not petition the Supreme Court for a writ of certiorari.
Cook filed a motion to vacate his sentence under § 2255 in this Court in February 2009. DE #65 (Motion). He later filed a construed supplemental § 2255 motion. DE #71 (Construed Supplemental Motion). Cook raised several claims, including an allegation that his trial counsel provided ineffective assistance by failing to inform him of a plea offer until after his trial and conviction. DE #65 at 2. After reviewing Cook's pleadings, the Government's responses, and related documents, Magistrate Judge Candace J. Smith recommended that the District Court deny Cook's § 2255 motion and its supplement. DE #84 (Report & Recommendation). Cook filed objections to Judge Smith's recommendation (DE #88 (Objections)), and the Government responded (DE #89 (Response)). District Judge Forester overruled Cook's objections. DE #90 (Opinion & Order). Consistent with Judge Smith's recommendation, Judge Forester denied Cook's motion to vacate, as supplemented, declined to issue a certificate of appealability, and entered judgment in favor of the United States. Id.; DE #91 (Judgment). Cook appealed Judge Forester's decision (DE #92 (Notice of Appeal)), but the Sixth Circuit denied his motion for a certificate of appealability on August 1, 2011 (DE #98 (Order)).
Nearly two years later, Cook filed the Rule 60(b) motion for relief from judgment currently pending before the Court. The motion stands ripe and ready for review.
A. Cook's Rule 60(b) Motion Is a Successive Petition
As a threshold matter, the Court considers whether Cook's motion constitutes a second or successive § 2255 motion. The United States argues that it does. DE #101 at 3-5. The Court agrees.
In Gonzalez v. Crosby, 125 S.Ct. 2641, 2646-48 (2005), the Supreme Court held that a Rule 60(b) motion should be treated as a second or successive habeas application when it advances one or more "claims." The Court explained that a motion can "be said to bring a claim' if it attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief." Id. at 2648 (emphasis in original). A Rule 60(b) motion does not bring a "claim, " however, when it "attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the... proceedings." Id. The Gonzalez Court specifically noted that a movant is not making a claim "when he merely asserts that a previous ruling which precluded a merits determination was in error-for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar." Id. at 2648 n. 4.
Although the Gonzalez Court "explicitly limited its holding to the relationship between Rule 60(b) and 28 U.S.C. § 2254, " see In re Nailor, 487 F.3d 1018, 1021 (6th Cir. 2007) (citing Gonzalez, 125 S.Ct. at 2646 n. 3), the Sixth Circuit has held that Gonzalez 's reasoning also applies to the relationship between Rule 60(b) and § 2255 motions. Id .; see also United States v. Luney, 2011 WL 4528152, at *3 n. 1 (E.D. Ky. Sept. 28, 2011).
Here, Cook contends that he is entitled to Rule 60(b) relief because the Court erred in failing to provide him with an evidentiary hearing on his prior § 2255 motion, specifically with respect to his claim that trial counsel afforded him ineffective assistance by failing to notify him of a plea offer until after the trial. DE #99 at 2-3. Section 2255 includes a hearing requirement: "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." § 2255(b) (emphasis added). Thus, at first blush, Cook's Rule 60(b) motion may ...