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United States v. Cook

United States District Court, E.D. Kentucky, Central Division, Lexington

July 5, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
WILLIAM COOK, Defendant/Movant.

          MEMORANDUM ORDER

          Danny C. Reeves United States District Judge

         This matter is pending for consideration of Defendant/Movant William Cook's motion seeking collateral relief. [Record No. 123] As discussed more fully below, while Cook's motion purports to seek relief under Rule 60(b)(6) of the Federal Rules of Civil Procedure, the relief sought comes within the ambit of 28 U.S.C. § 2255. And because Cook previously has sought relief under this statutory section, he must first obtain permission from the United States Court of Appeals for the Sixth Circuit before proceeding in this Court.

         I.

         Cook knowingly transported a fourteen-year-old girl from Ohio to Scott County, Kentucky, with the intent that the minor engage in sexual activity in violation 18 U.S.C. § 2423(a). He was convicted in 2007 and later sentenced to a term of imprisonment of 292 months. [Record Nos. 34 and 46] Cook's conviction and sentence were affirmed in July 2008. [Record No. 58] After exhausting his direct appeal, Cook filed his first § 2255 motion on February 5, 2009. [Record No. 65] That motion was denied on October 28, 2010. [Record Nos. 90 and 91] Again, Cook's appellate challenge was unsuccessful. [Record No. 98]

         Cook filed a second collateral challenge to his conviction in June 2013. [Record No. 99] Cook captioned his pleading: “Motion to Vacate/Correct or Set Aside Judgment Pursuant to Fed. R. Civ. Proc. 60(B)(6).” [Record No. 99] However, the Magistrate Judge assigned to review that pleading correctly determined that it constituted a second, uncertified § 2255 motion. [Record No. 107] Thereafter, the matter was transferred to the Sixth Circuit pursuant to 28 U.S.C. § 1631. [Record No. 108] The Sixth Circuit denied Cook's request for permission to consider a second or successive § 2255 motion on September 29, 2014. [Record No. 112]

         Cook also filed a motion to reduce his sentence in May 2016, citing Johnson v. United States, 135 S.Ct. 2551 (2015), as authority for the relief requested. [Record No. 114] That motion was denied May 25, 2016, following reassignment to the undersigned. [Record No. 117] On November 16, 2016, the Sixth Circuit denied Cook's request for an order authorizing this Court to consider this claim as a second or successive § 2255 motion. [Record No. 120]

         Next, in December 2016, Cook filed a motion for a new trial, challenging the racial composition of the jury that convicted him in 2006. [Record No. 121] That motion was denied December 20, 2016. [Record No. 122] Undaunted, Cook retuned to this Court on May 31, 2017, again seeking relief under the guise of Rule 60(b)(6) of the Federal Rules of Civil Procedure. [Record No. 125] Cook's current motion was referred to United States Magistrate Judge Hanly A. Ingram for a report and recommendation.

         II.

         On June 6, 2017, Magistrate Judge Ingram filed a Recommended Disposition, summarizing the relevant procedural history of the case and recommending that the matter be transferred to the Sixth Circuit pursuant to Rule 9 of the Rules Governing Section 2255 Proceedings. [Record No. 125] As Magistrate Judge Ingram explained,

Although partially styled as a Rule 60(b) motion, the Court must treat it as a motion under § 2255. “A Rule 60(b) motion that attempts ‘to add a new ground for relief' is effectively a motion to vacate, set aside, or correct a sentence, and thus should be considered a § 2255 motion.” In re Nailor, 487 F.3d 1018, 1022 (6th Cir. 2007) (quoting Golzalez v. Crosby, 545 U.S. 524, 532 (2005)).
Here, Cook attempts to add a new ground for relief, namely that the federal court lacked jurisdiction over his prosecution. Cook argues that, pursuant to the Tenth Amendment, he must “go before a state judge, ” not a federal court. D.E. 123 at 1. He accuses various officials, including his defense counsel, of committing crimes, torts, and regulatory violations against him in their assertion of federal jurisdiction. Id. at 2-5. He argues that, in the absence of a prior state prosecution, his federal indictment was void, as were “the laws that were passed that authorized [him] to be brought to Federal Court.” Id. at 3-4. Because this is a new claim - a new ground for relief - that attacks his original judgment, the Court must treat it as a motion under 28 U.S.C. § 2255. See Nailor, 487 F.3d at 1023 (citing United States v. Nelson, 465 F.3d 1145, 1148-49 (10th Cir. 2006)).

[Record No. 125, p. 2]

         The Magistrate Judge then concludes that, “[b]ecause the legality of [Cook's] detention was upheld on the merits on a prior § 2255 motion (and because neither § 2255(h) exception applies), Cook is required to seek certification from the Sixth Circuit [] to file this second or successive § 2255 motion.” Id. at 4. Cook filed objections to the Magistrate Judge's Recommended Disposition on June 20, 2017.

         A district court must conduct a de novo review of the portions of a magistrate judge's report and recommendations to which a party objects. 28 U.S.C. ยง 636(b)(1). Here, Cook contends that Rule 60(b) provides an avenue of relief where an incorrect standard has been applied in denying an earlier certificate of appealability. Cook cites ...


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