Opinion
4:19-cr-00033-CDL-MSH
04-15-2024
UNITED STATES OF AMERICA, v. JONATHAN O. DUNLAP, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court are Defendant Jonathan Dunlap's Rule 60(b) motion for relief from judgment on his motion to vacate his sentence under 28 U.S.C. § 2255, and his supplement thereto (ECF No. 77, 80). Also pending is Dunlap's motion for bond pending final resolution of his Rule 60(b) motion (ECF No. 79). For the reasons explained below, it is recommended that Dunlap's motions be denied.
BACKGROUND
On December 4, 2019, pursuant to a plea agreement and represented by retained defense counsel Stacey S. Jackson, Dunlap pleaded guilty to two counts of a superseding indictment (ECF Nos. 18, 30, 31). As part of his plea, Dunlap waived his right to appeal and to collaterally attack his conviction and sentence. Plea Agreement 4-5, ECF No. 30. Even though, as contemplated by his appeal waiver, Dunlap was sentenced within the guideline range calculated by the Court at sentencing, he nonetheless filed an appeal of his sentence on August 17, 2020, through retained appellate counsel E. Jay Abt (ECF Nos. 52; 54; 65 at 19-20, 23-24). Finding that Dunlap's guilty plea was knowing and voluntary, and as a result the appeal wavier was valid, the United States Court of Appeals for the Eleventh Circuit dismissed his appeal on the Government's motion on March 22, 2021 (ECF Nos. 67, 68). See also United States v. Dunlap, 840 Fed.Appx. 510 (11th Cir. 2021) (per curiam). Still represented by retained appellate counsel Abt, Dunlap then filed a motion to vacate under 28 U.S.C. § 2255 on August 4, 2021 (ECF No. 69). On March 11, 2022, the Court denied Dunlap's § 2255 motion, and judgment was entered on March 14, 2022 (ECF Nos. 74, 75, 76). On December 13, 2023, Dunlap filed his motion for relief from judgment on his § 2255 motion pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure (ECF No. 77). Dunlap subsequently filed a supplement to his Rule 60(b)(6) motion (ECF No. 80), and a motion for bond pending final resolution of his Rule 60(b)(6) motion (ECF No. 79). The Government filed its response to Dunlap's supplemented Rule 60(b)(6) motion (ECF No. 81), to which Dunlap filed a reply (ECF No. 83). Dunlap's motions are ripe for review.
Dunlap is a prisoner in a federal penitentiary. Def.'s Rule 60(b) Mot. 10. As a result, he is entitled to the benefit of the “prison mailbox rule,” in which pro se prisoner filings are generally “deemed filed on the date the prisoner delivers the motion to prison authorities for mailing.” Houser v. United States, 808 Fed.Appx. 969, 971 (11th Cir. 2020) (per curiam) (citations omitted).
In his reply, Dunlap asserts the Government's response is untimely. Def.'s Reply to Gov.'s Resp. 1-2, ECF No. 83. Dunlap is mistaken. While sixty days from the date of the Court's order was Saturday, February 17, 2024, the Rules gave the Government until Tuesday, February 20, 2024, to file its response. Under Rule 6, “if the last day is a Saturday . . . or [a] legal holiday, the period continues to run until the end of the next day that is not a Saturday . . . or legal holiday.” Fed.R.Civ.P. 6(a)(1)(C). Monday, February 19, 2024, was a federal holiday. See 5 U.S.C. § 6103(a). As a result, the Government's response was due Tuesday, February 20, 2024, which is the date the Government filed its response.
I. The Rule 60(b) Standards
Federal Rule of Civil Procedure 60(b) provides that “[o]n motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding” based on several enumerated grounds. Fed.R.Civ.P. 60(b). The first five grounds are limited to those grounds enumerated. However, Rule 60(b)(6) is “a catchall for ‘any other reason that justifies relief.'” Kemp v. United States, 596 U.S. 528, 533 (2022) (quoting Fed.R.Civ.P. 60(b)(6)). In order to successfully move under Rule 60(b)(6), however, a movant must do two things. First, the movant must make his motion under Rule 60(b)(6) “within a reasonable time[.]” Fed.R.Civ.P. 60(c)(1). This is because Rule 60(c) imposes deadlines on Rule 60(b) motions. Kemp, 596 U.S. at 533. “[W]hat counts as a reasonable amount of time depends on the circumstances in an individual case, and courts should consider whether the parties have been prejudiced by the delay and whether a good reason has been presented for failing to take action sooner.” Ferrer v. Bayview Loan Servicing, LLC, 823 Fed.Appx. 858, 861 (11th Cir. 2020) (per curiam) (internal quotation marks and citation omitted).
Second, the movant must show “extraordinary circumstances,” but in the habeas context, that will “rarely occur[.]” United States v. Harrison, 809 Fed.Appx. 635, 636 (11th Cir. 2020) (per curiam) (quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). In other words, “[the movant] must do more than show that a grant of its motion might have been warranted. [The movant] must demonstrate a justification for relief so compelling that the district court was required to grant [the] motion.” Olmstead v. Humana, Inc., 154 Fed.Appx. 800, 805-06 (11th Cir. 2005) (per curiam) (alterations in original) (quoting Rice v. Ford Motor Co., 88 F.3d 914, 919 (11th Cir. 1996)). “The party seeking relief has the burden of showing that absent such relief, an ‘extreme' and ‘unexpected' hardship will result.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984) (citing United States v. Swift & Co., 286 U.S. 106, 119 (1932)). However, even if a movant demonstrates extraordinary circumstances, “whether to grant the requested relief is . . . a matter for the district court's sound discretion.” Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000) (quoting Booker v. Singletary, 90 F.3d 440, 442 (11th Cir. 1996)).
II. Dunlap's Supplemented Rule 60(b)(6) Motion
Dunlap's supplemented Rule 60(b)(6) motion raises two grounds for relief. First, he argues that his retained appellate counsel-attorney Abt-labored under a conflict of interest when Abt brought Dunlap's § 2255 motion. Def.'s Rule 60(b) Mot. 6-10, ECF No. 77. Second, he argues his retained appellate counsel failed to raise a new ground on direct appeal. Def.'s Suppl. Rule 60(b) Mot. 2-5, ECF No. 80.
The Government makes three arguments in opposition. First, Dunlap's motion is untimely. Gov.'s Resp. to Rule 60(b) Mot. 3-4, ECF No. 81. Second, Dunlap's motion is barred as a second or successive motion under § 2255. Id. at 4-5. Finally, Dunlap has failed to establish extraordinary circumstances. Id. at 5-7. The Court addresses each in turn.
A. Dunlap's Motion is Untimely
As noted previously, a motion made under Rule 60(b)(6) must be brought within a reasonable time. The Court must consider the circumstances of this case and any explanation offered by Dunlap to determine whether he brought his motion within a reasonable time. For the following reasons, the Court concludes that Dunlap did not do so.
First, Dunlap seeks relief from a judgment that was entered on March 14, 2022. Judgment, ECF No. 76. He did not file his Rule 60(b)(6) motion until December 13, 2023. Def.'s Rule 60(b) Mot. 11. In other words, Dunlap waited twenty-one months to file his Rule 60(b)(6) motion seeking relief from the judgment entered on March 14, 2022. On its face, a twenty-one-month delay does not appear to be reasonable, particularly when juxtaposed against the one-year limitation that is imposed on the first three enumerated grounds for relief under Rule 60(b). Fed.R.Civ.P. 60(c)(1) (imposing a one-year limitation on motions for relief made under Rule 60(b)(1) through (3)).
Second, in his supplemented Rule 60(b)(6) motion, Dunlap did not address this apparently unreasonable delay. Def.'s Rule 60(b) Mot.; Def.'s Suppl. Rule 60(b) Mot. However, in reply to the Government, Dunlap offers an explanation that the Bureau of Prisons (“BOP”), still allegedly recovering from the Corona-19 virus pandemic, “had not fully resumed normal operation until nearly a year after the judgment under attack was entered” and it “wasn't until the summer of 2023 when [he] learned that his attorney had not appealed from the judgment” on his § 2255 motion. Def.'s Reply 3, ECF No. 83. There are two problems with Dunlap's explanations. First, Dunlap admits the BOP resumed normal operations around March 2023, which is approximately nine months before he filed his Rule 60(b)(6) motion. Second, Dunlap admits that he “learned” that his attorney had not filed an appeal in “the summer of 2023,” which is still more than four months before he filed his Rule 60(b)(6) motion.
Having considered the circumstances of this case, and Dunlap's explanation for his delay in filing his Rule 60(b)(6) motion, the Court finds Dunlap did not file his motion within a reasonable time. Accordingly, the Court recommends dismissing Dunlap's Rule 60(b)(6) motion because it is untimely.
B. Dunlap's Motion is a Second or Successive § 2255 Motion
Next, the Government argues that Dunlap's supplemented Rule 60(b)(6) motion is barred as a second or successive § 2255 motion. Gov.'s Resp. 4-5. In his supplemented motion, Dunlap asserts that he does not attack his conviction, but instead seeks to re-open his § 2255 motion “based on an undeniable and inherent conflict of interest with [his] habeas counsel.” Def.'s Rule 60(b) Mot. 5. In his reply to the Government, Dunlap disclaims any attempt to “vacate his actual sentence” because “such a request would transform a Rule 60(b) motion into a successive Section 2255 motion.” Def.'s Reply 4. Dunlap assures the Court that he has “avoided engaging in such a failing practice.” Id. The Court finds Dunlap's assertions unavailing.
Federal district courts do “not have jurisdiction to review a federal prisoner's second or successive § 2255 motion, unless that motion is first certified by the appropriate United States Court of Appeals.” Sosa v. United States, 769 Fed.Appx. 855, 857 (11th Cir. 2019) (per curiam) (first citing 28 U.S.C. §§ 2244(a), 2255(h); and then citing Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)). “A Rule 60(b) motion for relief from judgment on a § 2255 motion constitutes a second or successive § 2255 motion if it seeks to add a new ground for relief or attacks the district court's prior resolution of a claim on the merits, but not when it attacks a defect in the integrity of the § 2255 proceedings.” Id. at 857-58 (first citing Gonzalez, 545 U.S. at 532; and then citing Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011) (en banc) overruled on other grounds by McCarthan v. Dir. of Goodwill Indust.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en banc)). For the following reasons, the Court finds that Dunlap's supplemented Rule 60(b)(6) motion is barred as a second or successive § 2255 motion.
In his § 2255 motion, Dunlap asserted a claim of ineffective assistance of counsel based on trial counsel allegedly misadvising him to plead guilty to an unfavorable plea agreement, which rendered his plea involuntary, as well as a claim that the Court failed to address each sentencing factor under 18 U.S.C. § 3553(a). Def.'s § 2255 Mot., ECF No. 69. The Court addressed Dunlap's ineffective assistance claim on the merits and found his sentencing factor claim was barred by his plea agreement's collateral attack waiver, and it denied them. R&R, ECF No. 74; Order, ECF No. 75 (adopting R&R). Now, in his initial Rule 60(b)(6) motion, Dunlap seeks to assert a claim of ineffective assistance of appellate counsel in his § 2255 motion-to-be-reopened, but it is based on appellate counsel's alleged conflict of interest which prevented appellate counsel from raising a claim of actual innocence in his § 2255 motion because the conduct to which Dunlap pleaded guilty was a “non-offense.” Def.'s Rule 60(b) Mot. 6-10. In his supplemented Rule 60(b)(6) motion, Dunlap asserts another claim of ineffective assistance of appellate counsel, but this claim is based on appellate counsel's alleged conflict of interest which prevented appellate counsel from raising a claim that his prior state convictions are not “controlled substance offenses” within the meaning of the Career Offender sentencing provisions. Def.'s Suppl. Rule 60(b) Mot. 2-5. In other words, Dunlap wants to reopen his § 2255 motion so that he can assert two claims of ineffective assistance of appellate counsel, which two claims he could not bring in his original § 2255 motion, because he was represented on appeal and on his original § 2255 motion by the same retained attorney.
The two claims Dunlap now seeks to assert-while framed as a “defect in the integrity of the federal habeas proceeding”-are at bottom new grounds for relief, and Dunlap may not assert them in his supplemented Rule 60(b)(6) motion. To be sure, Dunlap asserts that his retained appellate counsel-who was also his retained habeas counsel- labored under an alleged conflict of interest because he was prevented from asserting claims of ineffective assistance of counsel against himself in his original § 2255 motion. But the end result, if Dunlap is granted relief under Rule 60(b)(6), is that he is able to do something Rule 60(b)(6) does not permit: bring two new grounds for relief that were not asserted in his original § 2255 motion. Remove the window-dressing of ineffective assistance of appellate counsel, and Dunlap seeks to assert a claim of actual innocence because his guilty plea was to conduct that was not illegal, and a claim that his prior state convictions did not qualify for the sentencing enhancement under the Career Offender provisions. “[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.” Wolf v. United States, 744 Fed.Appx. 684, 685 (11th Cir. 2018) (per curiam) (alterations in original) (quoting Gonzalez, 545 U.S. at 532 n.5); accord Chatman v. Frazier, No. 4:08-CV-157 (CDL), 2023 WL 4492462, at *3 (M.D. Ga. July 12, 2023) (finding the petitioner's Rule 60(b)(6) motion's claims of ineffective assistance of counsel “a veiled attempt to file a successive § 2254 habeas petition.”). Dunlap, in effect, makes an attack on his retained habeas counsel's omissions. Accordingly, because Dunlap seeks to assert two new grounds for relief through his supplemented Rule 60(b)(6) motion, and because there is nothing in the record showing that Dunlap has received prior authorization from the Eleventh Circuit as discussed infra, the Court is without jurisdiction, and his motion should be dismissed.
C. Dunlap Fails to Establish Extraordinary Circumstances
Finally, the Government argues that, even if Dunlap's motion is timely and is not a second or successive § 2255 motion, he nevertheless fails to establish extraordinary circumstances in order to entitle him to relief. Gov.'s Resp. 5-7. Dunlap replies that his retained habeas counsel's conflict of interest rendered his “habeas proceedings fundamentally unfair.” Def.'s Reply 4. The Court agrees with the Government for several reasons.
First, “garden-variety” ineffective assistance claims do not constitute extraordinary circumstances sufficient to justify reopening a judgment under Rule 60(b)(6). See Lambrix v. Sec'y, Fla. Dep't of Corr., 851 F.3d 1158, 1172 (11th Cir. 2017). Rather, an ineffective assistance of counsel claim sufficient to justify reopening must be similar to that in the case of Buck v. Davis, 580 U.S. 100 (2017). In Buck, the defendant-Buck-was convicted of capital murder in Texas. Id. at 104. Under Texas law, “the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future.” Id. Defense counsel introduced expert testimony that opined Buck was unlikely to engage in violent conduct-but which also opined that “one of the factors pertinent in assessing a person's propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black.” Id. Buck was sentenced to death. Id. Ultimately, Buck asserted that the introduction of the race-based evidence by his counsel amounted to ineffective assistance of counsel. Id. However, prior to Buck's appeal to the United States Supreme Court, no court heard that claim on the merits “because the attorney who represented Buck in his first state postconviction proceeding failed to raise it[,]” and when Buck sought to assert that ineffective assistance claim in 2006, the district court held that the claim was procedurally defaulted. Id.
Eight years later, Buck attempted to reopen-via Rule 60(b)(6)-the 2006 judgment that found his ineffective assistance claim procedurally defaulted. Id. The district court denied the motion, and the United States Court of Appeals for the Fifth Circuit did not issue a certificate of appealability. Id. at 105. However, the Supreme Court found three extraordinary circumstances which justified reopening under Rule 60(b)(6):
(1) it was a death-penalty case; (2) the underlying claim involved a race-based claim of ineffective-assistance-of-trial-counsel, a “pernicious” injury that harms not only the petitioner but the community at large; and (3) the State of Texas's “remarkable step[]” of admitting error in similar cases but refusing to admit error in Buck's case.Lambrix, 851 F.3d at 1172 (alteration and emphasis in original) (quoting Buck, 580 U.S. at 121-26).
The Eleventh Circuit has confirmed that something like the claim asserted in Buck is required to merit extraordinary circumstances. When confronted with a death penalty case in which the defendant sought to reopen his § 2254 motion based in-part on a claim of actual innocence, the Eleventh Circuit found the defendant had not presented extraordinary circumstances, and it denied him a certificate of appeal. Id. at 1167, 1171-72. While the claims Dunlap seeks to assert are undoubtedly important to him, they simply are not sufficiently extraordinary to justify reopening: Dunlap was not facing the death penalty, racial issues-or any other “pernicious” injury that harms the community at large-are not the bases for his claims, and the Government has not admitted error in similar cases but refuses to do so in Dunlap's case. Instead, Dunlap asserts “garden-variety” ineffective assistance of counsel claims based on an alleged defect in the indictment against him and a sentencing error.
Second, as the Government rightly points out, the Eleventh Circuit considered Dunlap's retained appellate counsel's argument that Dunlap's appeal waiver was unenforceable because it was not knowingly made-and it rejected that argument. See United States v. Dunlap, No. 20-13099, Appellant's Resp. to Appellee's Mot. to Dismiss 4-5 (11th Cir. Feb. 19, 2021), ECF No. 20; Dunlap, 840 Fed.Appx. at 510 (first citing United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993) (sentence appeal waiver will be enforced if it was made knowingly and voluntarily); and then citing United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005) (waiver of the right to appeal includes waiver of the right to appeal difficult or debatable legal issues or even blatant error)). The underlying claims Dunlap now wishes to assert do not fall within any of the exceptions to his appeal waiver in his plea agreement. Plea Agreement 4-5. As a result, Dunlap's appeal would have been dismissed regardless of the claim asserted, and Dunlap cannot show a reasonable probability that his underlying claims would have succeeded on appeal. See Heath v. Jones, 941 F.2d 1126, 1132 (11th Cir. 1991) (discussing the Strickland v. Washington, 466 U.S. 668 (1984), standard for ineffective assistance of counsel as applied to ineffective assistance of appellate counsel claims in Cross v. United States, 893 F.2d 1287 (11th. Cir. 1990)). Accordingly, Dunlap has not shown extraordinary circumstances, and his supplemented Rule 60(b)(6) motion should be dismissed.
III. Conclusion
To the extent the Court finds Dunlap's supplemented Rule 60(b)(6) motion is a second or successive § 2255 motion, the Court recommends that it be dismissed for lack of jurisdiction because there is no evidence that Dunlap sought permission from the Eleventh Circuit to file his supplemented Rule 60(b)(6) motion. Young v. FCI Miami Warden, 805 Fed.Appx. 829, 832 (11th Cir. 2020) (per curiam) (vacating and remanding a district court's denial of a Rule 60(b) motion so the district court could dismiss it for lack of jurisdiction) (“Without [the Eleventh Circuit's] authorization, the district court lacked jurisdiction to consider the motion, and should have dismissed it for lack of jurisdiction rather than” denying it (first citing Farris, 333 F.3d at 1216; and then citing Franqui v. Fla., 638 F.3d 1368, 1375 (11th Cir. 2011)). In the alternative, the Court recommends that Dunlap's supplemented Rule 60(b)(6) motion be denied. Because the Court ultimately recommends the dismissal or denial of Dunlap's supplemented Rule 60(b)(6) motion, it is also recommended that Dunlap's motion for bond pending final resolution of his Rule 60(b) motion (ECF No. 79) be denied.
For the foregoing reasons, IT IS RECOMMENDED that Dunlap's supplemented Rule 60(b)(6) motion (ECF Nos. 77, 80) be DISMISSED for lack of jurisdiction, or in the alternative that it be DENIED, and that his motion for bond pending final resolution of his Rule 60(b) motion (ECF No. 79) be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.