Derrick E. Dailey v. USA

• Court: District Court, W.D. Missouri
• Decided: February 23, 2026
• Docket: 6:24-cv-03162
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION DERRICK E. DAILEY, ) ) Movant, ) ) v. ) Case No. 6:24-cv-03162-RK ) USA, ) ) Respondent. ) ORDER On January 16, 2025, the Court denied Movant’s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 5.) A clerk’s judgment was entered on the same day. (Doc. 6.) Approximately eight months later, on September 9, 2025, Movant filed a pro se motion for relief pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure.1 (Doc. 7.) Movant asserts that post-conviction counsel was ineffective and the Court should therefore set aside the prior order denying his § 2255 motion for post-conviction relief and “restore [Movant’s] section 2255 motion/rights.” (See generally id.) The United States has filed a response, (Doc. 8), and Movant has filed a pro se reply, (Doc. 9). Under Rule 60(b)(6), the Court may reopen a judgment for “any other reason that justifies relief.” In the context of habeas or post-conviction cases, post-judgment relief under Rule 60(b) is available “to the extent it is not inconsistent with [the Antiterrorism and Effective Death Penalty Act (“AEDPA”)].” Ward v. Norris, 577 F.3d 925, 932 (8th Cir. 2009) (citing Gonzalez v. Crosby, 545 U.S. 524, 529 (2005)). AEDPA bars second or successive § 2255 motions that do not rely on, generally, “newly discovered evidence” or “a new rule of constitutional law.” § 2255(h)(1), (2). As Movant alludes to in his pro se Rule 60(b)(6) motion, to file a second or successive motion a movant must additionally receive prior certification by the appropriate circuit court of appeals. § 2255(h). Movant’s Rule 60(b)(6) motion—arguing that post-conviction counsel was ineffective and “erroneously raised the very same issues that he raised on . . . direct appeal”2—is in substance a

1 Movant had been otherwise represented by counsel in this post-conviction case. 2 In the initial § 2255 motion, Movant (through counsel) asserted a claim for relief that the sentence imposed was unconstitutional because the Court erroneously overruled a number of his objections to the second or successive motion to vacate, set aside, or correct sentence, and is therefore subject to AEDPA’s precertification requirement. See United States v. Lee, 792 F.3d 1021, 1023-25 (8th Cir. 2015) (finding that habeas petitioner’s Rule 60(b) motion was in substance a second or successive § 2255 motion because it sought “to reopen a claim which had been raised in his initial habeas petition and decided by the district court” on the basis that post-conviction counsel was “ineffective[] by not attaching important affidavits and other supporting evidence to his § 2255 petition”); Horton v. United States, No. 6:15-cv-03019-MDH, 2016 WL 11893930, at *1 (W.D. Mo. Aug. 8, 2016) (finding that § 2255 movant’s Rule 60(b) motion “claiming he received ineffective assistance of counsel in his § 2255 proceedings . . . is, in substance, a second or successive habeas petition”).3 Because Movant has not obtained authorization from the court of appeals to file a second or successive habeas petition, Movant’s pro se motion is DISMISSED. IT IS SO ORDERED.

s/ Roseann A. Ketchmark ROSEANN A. KETCHMARK, JUDGE UNITED STATES DISTRICT COURT

DATED: February 23, 2026

PSR calculation at sentencing and erred in calculating the base offense level. (See generally Doc. 1.) Movant did not assert a claim for ineffective assistance of trial or appellate counsel. The Court found (1) Movant was not entitled to relief under § 2255 because he previously raised these sentencing errors on direct appeal, and (2) alternatively, the appeal/collateral-attack waiver in the plea agreement applied. (See generally Doc. 5.) 3 Movant cites several cases as establishing that “adequate counsel is also applied in post-conviction matters as well.” (Doc. 7 at 2.) The cases Movant cites, however—Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013)—establish only that ineffective assistance of state post- conviction counsel may establish cause to overcome procedural default for a federal habeas claim brought under 28 U.S.C. § 2254. See Davila v. Davis, 582 U.S. 521, 528-29 (2017) (explaining that Martinez and Trevino, together, establish that in certain circumstances a federal habeas claim by a state prisoner for ineffective assistance of trial counsel is not barred by procedural default—i.e., because it was not first raised in the state post-conviction proceeding—if the procedural default “results from the ineffective assistance of the prisoner’s counsel in the [state] collateral proceeding”). In addition, the Court notes that the crux of Movant’s Rule 60(b)(6) motion is that he seeks to “reopen or re-establish his [initial] section 2255 rights” so that AEDPA’s second or successive bar under § 2255(h) will not apply should he wish to file a motion for relief under § 2255 in the future. (See Doc. 9.) He does not affirmatively assert any cognizable ground for relief under § 2255 whether for ineffective assistance of trial or appellate counsel or any other ground he contends post-conviction counsel should have raised.