United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge
Christopher Burkhart has filed a motion for a sentence
modification pursuant to Rule 60(b)(6) of the Federal Rules
of Civil Procedure. [Record No. 156] The matter will be
transferred to the United States Court of Appeals for the
Sixth Circuit in accordance with 28 U.S.C. § 2244
because the Court construes Burkhart's motion as an
attempt to file a second or successive petition for relief
under 28 U.S.C. § 2255, .
pled guilty in October 2003 to: (i) possession with intent to
distribute over 50 grams of methamphetamine, (ii) possession
of a firearm while being an unlawful user of a controlled
substance, and (iii) possession of a firearm in furtherance
of a drug trafficking crime. [Record No. 41] Burkhart was
sentenced on February 17, 2004, to a total term of
imprisonment of 324 months, to be followed by a five-year
term of supervised release. [Record No. 52] Burkhart appealed
his sentence and the Sixth Circuit remanded his case for
resentencing consistent with United States v.
Booker, 543 U.S. 220 (2005). [Record No. 71] He was
subsequently re-sentenced to 260 months. [Record No. 79]
Burkhart again appealed, and the Sixth Circuit affirmed the
Court's sentence. [Record No. 92]
filed a motion to vacate his sentence under 28 U.S.C. §
2255, claiming ineffective assistance of counsel. [Record No.
102] The motion was referred to United States Magistrate
Judge Hanly A. Ingram, who filed a report, recommending that
the Court deny Burkhart's § 2255 motion (October 6,
2011). [Record No. 118] The Court adopted the Recommended
Disposition in full. [Record No. 120] Burkhart then filed a
motion for reconsideration, which the Court denied. [Record
No. 122] He subsequently appealed the denial of his §
2255 motion and his motion for reconsideration. [Record No.
123] The Sixth Circuit denied his application for a
certificate of appealability. [Record No. 132]
filed a motion to reduce his sentence under 18 U.S.C. §
3582 on November 10, 2014, based on changes to the drug
tables used in determining non-binding guideline range.
[Record No. 140] That motion was denied because, after
reviewing the factors under 18 U.S.C. § 3553, a lesser
term of incarceration would be inappropriate. [Record No.
141] Burkhart moved for reconsideration of the denial of his
motion to reduce his sentence, but the Court denied
reconsideration. [Record No. 147]
now files a motion under Rule 60(b)(6) of the Federal Rules
of Civil Procedure in which he again seeks to have his
sentence reduced. [Record No. 156] Rule 60(b)(6) states that,
“[o]n motion and just terms, the court may relieve a
party or its legal representative from a final judgment,
order, or proceeding for . . . any other reason that
justifies relief.” Burkhart asserts that he has had
time to “‘get it right,' better himself, and
further prepare for his release.” [Record No. 156, p.
2] He requests relief because of his post- sentencing efforts
to rehabilitate himself and his efforts to reduce his
likelihood of recidivism. [Id. at 11] However,
“[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 Gonzalez v.
Crosby, 545 U.S. 524, 532 (2005)). Here, Burkhart seeks
to add a new ground for relief; that is, that his
post-sentencing efforts to rehabilitate himself warrant a
modification of his sentence. Burkhart's motion will
treated as a motion under § 2255.
28 of the United States Code, section 2244(b)(3)(A), provides
that, “[b]efore a second or successive application is
permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the
application.” This requirement cannot be circumvented
by a defendant labeling his motion as seeking relief under
Rule 60(b). Burkhart's motion must be considered as a
second or successive motion seeking relief under 28 U.S.C.
§ 2255. As a result, it must be properly certified as
provided in 28 U.S.C. § 2244 by a panel of the United
States Court of Appeals for the Sixth Circuit before it may
be considered by this Court. 28 U.S.C. § 2255(h).
it is hereby ORDERED as follows:
1. Defendant Christopher Burkhart's Motion for Relief
Under Rule 60(b) [Record No. 156] is construed as a motion
for leave to file a second or successive petition for
collateral relief under 28 U.S.C. § 2255.
2. The Clerk of the Court is DIRECTED to
transfer Defendant Burkhart's habeas motion [Record No.
156] to the United States Court of Appeals for the Sixth
Circuit as a successive petition seeking relief under 28
U.S.C. § 2255 in accordance with 28 U.S.C. § 2244.
3. To the extent that Burkhart's motion for a sentence
modification pursuant to Rule 60(b)(6) is deemed to properly
request relief from this ...