UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) UNITED STATES, ) ) v. ) Criminal No. 07-cr-0152-6 (ESH) ) HELERY R. PRICE, ) ) Petitioner. ) _________________________________________ )
MEMORANDUM OPINION
Before the Court are petitioner Helery R. Price’s motion pursuant to Federal Rule of Civil
Procedure 60(b) for relief from this Court’s previous denial of his motion under 28 U.S.C.
§ 2255 (see Mot. for Relief, ECF No. 416), and the government’s motion to transfer petitioner’s
motion to the Court of Appeals for the District of Columbia as a second or successive § 2255
motion. (See Mot. to Transfer, ECF No. 418.) For the reasons stated herein, the Court concludes
that it lacks jurisdiction over Price’s motion and grants the transfer to the Court of Appeals
pursuant to 28 U.S.C. § 1631.
BACKGROUND
On August 7, 2008, Price was sentenced to life in prison for his part in a conspiracy to
distribute and possess with intent to distribute one kilogram or more of PCP, in violation of 21
U.S.C. §§ 841(a)(1), 848(b)(1)(A)(iv), and 846. (See Mot. to Transfer at 2–3.) The life sentence
was required based upon the Court’s application of a sentencing enhancement under 21 U.S.C.
§ 841(b), due to Price’s two prior felony drug convictions. Prior to the application of this
enhancement, the Court asked Price to “affirm” the two predicate convictions that supported the
enhancement—a 1993 conviction in the U.S. District Court for the District of Columbia, and a 1988 conviction in the Superior Court for the District of Columbia. (See id. at 2; see also June
16, 2008 Order re: Prior Convictions, ECF No. 222.) Price’s attorney filed a response saying
that Price affirmed the convictions. (See Reply, ECF No. 227.)
However, approximately a month later, Price filed, pro se, a letter explaining that he
wished to challenge his 1988 conviction as “outside of the applicable time period to constitute
me a Carreer [sic] Offender.”1 (July 24, 2008 Letter, ECF No. 257.) Despite this letter, no
further challenge to the use of Price’s 1988 conviction was made, and “[d]uring the sentencing
hearing, neither petitioner nor his counsel challenged the predicate convictions used to enhance
his sentence.” (See Mot. to Transfer at 3.) Price appealed, and the Court of Appeals affirmed his
conviction on June 5, 2012. See United States v. Glover, 681 F.3d 411 (D.C. Cir. 2012).
Price moved for relief under § 2255 on October 25, 2013. (See Mot. to Vacate, ECF No.
329.) This Court denied Price’s motion but granted a certificate of appealability on two issues
not relevant to the instant motion. Once again, no mention was made of the use of Price’s 1988
conviction in his original sentencing. The Court of Appeals affirmed the denial of Price’s § 2255
motion on October 10, 2017. See United States v. Glover, 872 F.3d 625 (D.C. Cir. 2017).
Price’s current motion, which is “for relief from a judgment or order,” was filed on
October 2, 2019. (See Mot. for Relief at 1.) Price seeks relief on the ground that counsel for his
§ 2255 motion omitted claims of a constitutional dimension arising from the use of his 1988
conviction in the 2008 sentencing. He argues that counsel for the Motion to Vacate should have
included in the § 2255 motion that: (1) “despite Mr. Price’s expressed challenge to a predicate
1 Contrary to his letter, Price was not sentenced under the Career Offender Guidelines. See U.S.S.G. § 4B1.1. Rather, he was sentenced under a prior version of 21 U.S.C. § 841(b)(1), which was effective until April 14, 2009, and which required that a life sentence be imposed for certain drug crimes where a defendant already had “two or more prior convictions for a felony drug offense,” regardless of when such convictions occurred. See 21 U.S.C. § 841(b)(1). 2 conviction . . . trial counsel instead affirmed it”; and (2) counsel for his direct appeal also did not
raise any challenge to the predicate conviction. (See id. at 1.)2 The government moved on
November 4, 2019, to transfer Price’s motion to the Court of Appeals on the ground that
although styled as a Rule 60(b) motion, it is in effect a second or successive § 2255 motion.
ANALYSIS
I. Legal Standards
“A second or successive motion [under § 2255] must be certified . . . by a panel of the
appropriate court of appeals to contain” certain newly discovered evidence or the availability of a
new, retroactively applicable rule of constitutional law before it can be entertained by a district
court. See 28 U.S.C. § 2255(h); see also United States v. Arrington, 763 F.3d 17, 23 (D.C. Cir.
2014) (“[A] movant who seeks to bring a second or successive § 2255 motion must obtain pre-
filing authorization from a panel of the appropriate court of appeals.” (internal quotation marks
omitted)). Such certification is carried out as provided in 28 U.S.C. § 2244. See 28 U.S.C.
§ 2255(h).
Under Federal Rule of Civil Procedure 60(b), “the court may relieve a party or its legal
representative from a final judgment, order, or proceeding” for one of five enumerated grounds
or for “any other reason that justifies relief.” Such motions must be made “within a reasonable
time frame,” which is defined as “no more than a year” for motions made under Rule 60(b)(1)-
(3). While the rule “provides courts with authority adequate to enable them to vacate judgments
whenever such action is appropriate to accomplish justice,” the Supreme Court has cautioned
2 Price’s letter in 2008 complained that his conviction in 1988 should not have been used to calculate his Guideline range under the Career Offender Guideline. See supra note 1. In contrast, his primary argument regarding the 1988 conviction, as articulated in the present motion, is that trial counsel in 1988 failed to appeal the conviction, although Price does not indicate the grounds on which it could have been appealed. (See, e.g., Mot. for Relief at 13.) 3 that such authority “should only be applied in extraordinary circumstances.” Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 864 (1988) (internal quotation marks omitted).
The Supreme Court concluded in Gonzalez v. Crosby, 545 U.S 524 (2005), that although
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “did not expressly
circumscribe the operation of Rule 60(b)[,] . . . [u]sing Rule 60(b) to present new claims for
relief from a . . . judgment of conviction—even claims couched in the language of a true Rule
60(b) motion—circumvents AEDPA’s requirement that a new claim be dismissed unless it relies
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) UNITED STATES, ) ) v. ) Criminal No. 07-cr-0152-6 (ESH) ) HELERY R. PRICE, ) ) Petitioner. ) _________________________________________ )
MEMORANDUM OPINION
Before the Court are petitioner Helery R. Price’s motion pursuant to Federal Rule of Civil
Procedure 60(b) for relief from this Court’s previous denial of his motion under 28 U.S.C.
§ 2255 (see Mot. for Relief, ECF No. 416), and the government’s motion to transfer petitioner’s
motion to the Court of Appeals for the District of Columbia as a second or successive § 2255
motion. (See Mot. to Transfer, ECF No. 418.) For the reasons stated herein, the Court concludes
that it lacks jurisdiction over Price’s motion and grants the transfer to the Court of Appeals
pursuant to 28 U.S.C. § 1631.
BACKGROUND
On August 7, 2008, Price was sentenced to life in prison for his part in a conspiracy to
distribute and possess with intent to distribute one kilogram or more of PCP, in violation of 21
U.S.C. §§ 841(a)(1), 848(b)(1)(A)(iv), and 846. (See Mot. to Transfer at 2–3.) The life sentence
was required based upon the Court’s application of a sentencing enhancement under 21 U.S.C.
§ 841(b), due to Price’s two prior felony drug convictions. Prior to the application of this
enhancement, the Court asked Price to “affirm” the two predicate convictions that supported the
enhancement—a 1993 conviction in the U.S. District Court for the District of Columbia, and a 1988 conviction in the Superior Court for the District of Columbia. (See id. at 2; see also June
16, 2008 Order re: Prior Convictions, ECF No. 222.) Price’s attorney filed a response saying
that Price affirmed the convictions. (See Reply, ECF No. 227.)
However, approximately a month later, Price filed, pro se, a letter explaining that he
wished to challenge his 1988 conviction as “outside of the applicable time period to constitute
me a Carreer [sic] Offender.”1 (July 24, 2008 Letter, ECF No. 257.) Despite this letter, no
further challenge to the use of Price’s 1988 conviction was made, and “[d]uring the sentencing
hearing, neither petitioner nor his counsel challenged the predicate convictions used to enhance
his sentence.” (See Mot. to Transfer at 3.) Price appealed, and the Court of Appeals affirmed his
conviction on June 5, 2012. See United States v. Glover, 681 F.3d 411 (D.C. Cir. 2012).
Price moved for relief under § 2255 on October 25, 2013. (See Mot. to Vacate, ECF No.
329.) This Court denied Price’s motion but granted a certificate of appealability on two issues
not relevant to the instant motion. Once again, no mention was made of the use of Price’s 1988
conviction in his original sentencing. The Court of Appeals affirmed the denial of Price’s § 2255
motion on October 10, 2017. See United States v. Glover, 872 F.3d 625 (D.C. Cir. 2017).
Price’s current motion, which is “for relief from a judgment or order,” was filed on
October 2, 2019. (See Mot. for Relief at 1.) Price seeks relief on the ground that counsel for his
§ 2255 motion omitted claims of a constitutional dimension arising from the use of his 1988
conviction in the 2008 sentencing. He argues that counsel for the Motion to Vacate should have
included in the § 2255 motion that: (1) “despite Mr. Price’s expressed challenge to a predicate
1 Contrary to his letter, Price was not sentenced under the Career Offender Guidelines. See U.S.S.G. § 4B1.1. Rather, he was sentenced under a prior version of 21 U.S.C. § 841(b)(1), which was effective until April 14, 2009, and which required that a life sentence be imposed for certain drug crimes where a defendant already had “two or more prior convictions for a felony drug offense,” regardless of when such convictions occurred. See 21 U.S.C. § 841(b)(1). 2 conviction . . . trial counsel instead affirmed it”; and (2) counsel for his direct appeal also did not
raise any challenge to the predicate conviction. (See id. at 1.)2 The government moved on
November 4, 2019, to transfer Price’s motion to the Court of Appeals on the ground that
although styled as a Rule 60(b) motion, it is in effect a second or successive § 2255 motion.
ANALYSIS
I. Legal Standards
“A second or successive motion [under § 2255] must be certified . . . by a panel of the
appropriate court of appeals to contain” certain newly discovered evidence or the availability of a
new, retroactively applicable rule of constitutional law before it can be entertained by a district
court. See 28 U.S.C. § 2255(h); see also United States v. Arrington, 763 F.3d 17, 23 (D.C. Cir.
2014) (“[A] movant who seeks to bring a second or successive § 2255 motion must obtain pre-
filing authorization from a panel of the appropriate court of appeals.” (internal quotation marks
omitted)). Such certification is carried out as provided in 28 U.S.C. § 2244. See 28 U.S.C.
§ 2255(h).
Under Federal Rule of Civil Procedure 60(b), “the court may relieve a party or its legal
representative from a final judgment, order, or proceeding” for one of five enumerated grounds
or for “any other reason that justifies relief.” Such motions must be made “within a reasonable
time frame,” which is defined as “no more than a year” for motions made under Rule 60(b)(1)-
(3). While the rule “provides courts with authority adequate to enable them to vacate judgments
whenever such action is appropriate to accomplish justice,” the Supreme Court has cautioned
2 Price’s letter in 2008 complained that his conviction in 1988 should not have been used to calculate his Guideline range under the Career Offender Guideline. See supra note 1. In contrast, his primary argument regarding the 1988 conviction, as articulated in the present motion, is that trial counsel in 1988 failed to appeal the conviction, although Price does not indicate the grounds on which it could have been appealed. (See, e.g., Mot. for Relief at 13.) 3 that such authority “should only be applied in extraordinary circumstances.” Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 864 (1988) (internal quotation marks omitted).
The Supreme Court concluded in Gonzalez v. Crosby, 545 U.S 524 (2005), that although
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “did not expressly
circumscribe the operation of Rule 60(b)[,] . . . [u]sing Rule 60(b) to present new claims for
relief from a . . . judgment of conviction—even claims couched in the language of a true Rule
60(b) motion—circumvents AEDPA’s requirement that a new claim be dismissed unless it relies
on either a new rule of constitutional law or newly discovered facts.” Id. at 529–31.
Nevertheless, a 60(b) motion that attacks “some defect in the integrity of the federal habeas
proceedings,” rather than the substance of the district court’s resolution on the merits, should not
be treated as a second or successive habeas petition. See id. at 532. This is because such
motions do not “circumvent[] AEDPA’s requirement that a new claim be dismissed unless it
relies on either a new rule of constitutional law or newly discovered facts.” Id. at 531. The
Court of Appeals has applied the reasoning of Crosby—which analyzed the claim of a state
petitioner pursuant to 28 U.S.C. § 2254—to § 2255 cases as well. See Arrington, 763 F.3d at 22.
II. Price’s motion attacks the merits of his previous § 2255 denial, and thus must satisfy § 2255(h)’s requirements for a second or successive motion.
Although Price attempts to cast his Rule 60(b) motion as one that challenges a “defect in
the integrity of the federal habeas proceedings” (see Mot. for Relief at 1 (quoting Crosby, 545
U.S. at 532)), his motion falls squarely within the category of motions that Crosby describes as
“in substance a successive habeas petition.” Id. at 531.
Price first claims that his Motion to Vacate counsel should have brought a claim that his
trial counsel was ineffective because he failed to object to use of the predicate 1988 conviction.
However, this type of claim is directly addressed in Crosby. There, the Supreme Court cited a
4 case from the United States Court of Appeals for the Second Circuit, Harris v. United States, 367
F.3d 74 (2d Cir. 2004), as a paradigmatic example of a case in which “a pleading, although
labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated
accordingly.” Crosby, 545 U.S. at 531. In Harris, the petitioner argued that he should receive
relief under Rule 60(b) because “he was prejudiced by [his lawyer’s] omission as habeas counsel
[of a claim] in the initial habeas proceeding.” See 367 F.3d at 82.3 Price makes the same
argument as the defendant in Harris, and therefore, the Court must reach the same result as
required by Crosby. See 545 U.S. at 423 n.5 (“[A]n attack based on the movant’s own conduct,
or his habeas counsel’s omissions, . . . ordinarily does not go to the integrity of the proceedings,
but in effect asks for a second chance to have the merits determined favorably.”). Moreover,
Price’s argument that his Motion to Vacate counsel should have brought up the failure of his
counsel on direct appeal regarding the 1988 conviction is no different. “[D]espite the label as a
Rule 60(b) motion, [Price’s] pleading ultimately ‘seeks to add a new ground for relief’” from his
conviction,” and must be treated as a second or successive § 2255 motion. See United States v.
White, 2018 WL 10398026, at *2 (D.D.C. Jan. 21, 2018) (quoting Crosby, 545 U.S. at 523).
3 Although the Court of Appeals in Harris treated the petitioner’s argument as one that went to “the integrity of his habeas proceedings,” and thus considered the Rule 60(b) motion on the merits, see Harris, 367 F.3d at 81–82, the Supreme Court’s opinion in Crosby makes it clear that this Court should consider such motions as “in substance a successive habeas petition.” Crosby, 545 U.S. 531. 5 CONCLUSION
Accordingly, the Court will grant the government’s motion to transfer Price’s motion to
the Court of Appeals pursuant to 28 U.S.C. § 1631. A separate Order accompanies this
Memorandum Opinion.
_______________________
ELLEN S. HUVELLE United States District Judge Date: February 18, 2020