U.S. v. Gibson
| Decision Date | 24 May 2011 |
| Docket Number | No. 10-5231,10-5231 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PAUL DEAN GIBSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0351n.06
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
BEFORE: DAUGHTREY, MOORE, and CLAY, Circuit Judges.
CLAY, Circuit Judge. Defendant Paul Dean Gibson, who pleaded guilty and was sentenced to 150 months of incarceration for distributing Schedule II prescription drugs in violation of 21 U.S.C. §§ 841 and 846, appeals the district court's order denying his motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure, and denying his motion to amend his pleadings under Rule 15(a) of the Federal Rules of Civil Procedure. For the reasons set forth below, we AFFIRM.
On August 28, 2003, Defendant was indicted on one count of conspiracy to distribute and to possess with intent to distribute a quantity of marijuana, and one count of conspiracy to distribute and to possess with intent to distribute a quantity of the Schedule II controlled substances Oxycontin,Percocet, and Tylox, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The government also filed an information pursuant to 21 U.S.C. § 851 that established Defendant had a prior record of felony convictions. Defendant pleaded not guilty at arraignment, but later pleaded guilty to one count of conspiracy to distribute Schedule II substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846, pursuant to a plea agreement that waived his right to appeal his conviction but not his sentence.
Prior to sentencing, the U.S. Probation Office prepared a Presentence Investigation Report ("PSR") that calculated Defendant's sentence under the 2003 U.S. Sentencing Guidelines. Defendant was initially determined to have a criminal history of category VI and a base offense level of 17, which called for 51 to 63 months of incarceration. However, Defendant's PSR recommended that Defendant be sentenced as a career offender under § 4B1.1. of the Sentencing Guidelines, based, inter alia, on Defendant's 1993 conviction for felony escape, which occurred after Defendant "failed to report" to prison after failing a drug test while on probation for a DUI conviction. Based on the application of the career offender enhancement, Defendant's base offense level was adjusted to 31, and his Guidelines recommended sentence became 188 to 235 months.
At his sentencing hearing held on August 30, 2004, Defendant did not object to the PSR or the application of the career offender enhancement. However, Defendant moved for a downward departure under U.S.S.G. §§ 5H1.3 and 5H1.4, alleging that he had a substance addiction and mental and physical disabilities that warranted a sentencing reduction. These motions were denied. The government then moved for a downward departure under U.S.S.G. § 5K1.1, based on Defendant's substantial assistance to authorities. The district court granted this motion and imposed a below-Guidelines sentence of 150 months of incarceration and six years supervised release.
Following sentencing, Defendant did not file a direct appeal or seek collateral review. However, on February 14, 2006, Defendant filed a pro se motion nunc pro tunc that sought resentencing based on the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and alleged calculation errors in his PSR. Defendant also moved for a downward departure based on mental handicap under U.S.S.G. §§ 5H1.3, 5H1.4, 5K2.0, and 5K2.13, arguing that his requests were timely under Rule 15(c) of the Federal Rules of Civil Procedure because they related-back to motions that Defendant had timely raised during his sentencing hearing. The district court denied these motions on February 15, 2006, for reasons of jurisdiction, and this Court affirmed on March 16, 2007.
On December 18, 2009, with the assistance of counsel, Defendant filed a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure seeking relief from his criminal proceedings. Defendant argued that his sentence was void under the Supreme Court's decision in Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009), because felony escape convictions based on a defendant's "failure to report" were no longer considered violent felonies for the purpose of career offender enhancements. Perhaps cognizant that Rule 60(b) might not be the proper vehicle for relief, on December 31, 2009, Defendant also moved to amend his pleadings under Rule 15(a) of the Federal Rules of Civil Procedure to include a petition for a writ of habeas corpus under 28 U.S.C. § 2255.
On February 8, 2010, the district court denied Defendant's Rule 60(b) motion on grounds that Rule 60(b) did not provide relief from judgment in criminal proceedings. The district court also denied Defendant's Rule 15(a) motion to amend his pleadings to include a habeas petition, ongrounds that amendment would be futile because Defendant had procedurally defaulted his habeas claims. Defendant filed this timely appeal.
This Court reviews a district court's denial of a motion for postjudgment relief under Rule 60(b) of the Federal Rules of Civil Procedure for abuse of discretion. See, e.g., Jones v. Ill. Cen. R.R. Co., 617 F.3d 843, 850 (6th Cir. 2010); Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007). Keith v. Bobby, 618 F.3d 594, 697 (6th Cir. 2010) (citing Betts v. Costco Wholesale Corp., 558 F.3d 461, 467 (6th Cir. 2009)).
Rule 60(b) provides that civil litigants may seek relief from final judgment in instances of:
Fed. R. Civ. P. 60(b)(1)-(6). As a rule of civil procedure, Rule 60(b) applies to civil proceedings, proceedings authorized under Rule 81, and habeas proceedings, which are civil in nature. See Fed. R. Civ. P. 1 (); Fed. R. Civ. P. 81 (). See also Browder v. Dir., Dept. of Corr. of Ill., 434 U.S. 257, 269 (1978) (); Gonzalez v. Crosby, 545 U.S. 524, 529 (2005) (); In re Nailor, 487 F.3d 1018, 1021 (6th Cir. 2007) ().
Defendant in the instant case petitioned under Rule 60(b) for resentencing under Chambers and relief from his criminal proceedings and sentence. However, the district court properly denied Defendant's motion. Unlike habeas proceedings, which are subject to the Federal Rules of Civil Procedure "to the extent that [it is] not inconsistent with applicable federal statutes and rules," Crosby, 545 U.S. at 529 (internal citations and quotation marks omitted), federal criminal trials are governed by the Federal Rules of Criminal Procedure. See, e.g., Fed. R. Crim. P. 1(a)(1) (); Fed. R. Civ. P. 1 (); United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (). Accordingly, "Rule 60(b) is not applicable to criminal proceedings," United States v. Diaz, 79 F. App'x 151, 152 (6th Cir. 2003), and may not be used to disturb a criminal sentence or conviction. See, e.g., Mosavi, 138 F.3d at 1366; United States v. McCalister, 601 F.3d 1086, 1087-88 (10th Cir. 2010); United States v. Bender, 96 F. App'x 344, 345 (6th Cir. 2004); United States v. Charles, 37 F. App'x 758, 758 (6th Cir. 2002); Beckett v. United States, 8 F. App'x 330, 332 (6th Cir. 2001).
Because Rule 60(b) does not provide relief from judgment in criminal proceedings, we hold that the district court did not abuse its discretion when it denied Defendant's motion. Accord Mosavi, 138 F.3d at 1366; McCalister, 601 F.3d at 1087-88; Bender, 96 F. App'x at 345.
This Court reviews a district court's denial of a motion to amend pleadings under Rule 15(a) for abuse of discretion, except when a party's motion is denied for futility, in which case a de novo standard of review applies. See, e.g., Riverview Health Inst. LLC, v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010); Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010).
Recognizing that Rule 60 might not provide the relief sought, Defendant petitioned the district court for leave to amend his pleadings to include a petition for a writ of habeas corpus under 28 U.S.C. § 2255. Under Rule 15(a), district courts may allow petitioners to amend their pleadings "once as a matter of course," "freely . . . when justice so requires," or else with the "opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(1)-(2). However, motions to amend "should be denied if the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or...
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