IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JASON BEST, )

)

Petitioner, )

)

vs. ) NO. 2:00-CR-171

) (2:08-CV-59)

) 

UNITED STATES OF AMERICA, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the Motion For Relief Under

Rule 60(B)(3), filed by Petitioner, Jason Best, on May 1, 2009 [DE

#698]. For the reasons set forth below, the motion is DISMISSED

for lack of jurisdiction. The Clerk is ORDERED to send a copy of

this order, along with this Court’s order denying his section 2255

motion [DE #666], this Court’s order denying his section 3582

motion [DE #669], and a copy of the docket sheet from entries 565

until the present, to Jason Best, Prisoner #34828-077, Victorville

FCI - 5300, P.O. Box 5300, Adelanto, California 92301, or his most

recent address.

BACKGROUND

Petitioner, Jason Best, was convicted by a jury of one count

of conspiracy to distribute more than 50 grams of crack cocaine in
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violation of 21 U.S.C. section 846 (Count One), two counts of

possession with intent to distribute crack cocaine in violation of

21 U.S.C. section 841(a)(1) (Counts 2 and 3), and two counts of

maintaining a place for distribution of crack cocaine in violation

of 21 U.S.C. section 856 (a)(1) (Counts 7 and 8). Best was

sentenced to a term of life imprisonment on Count 1, a term of 240

months imprisonment on Count 2, 480 months on Count 3, 240 months

on Count 7, and 240 months on Count 8, all terms to be served

concurrently. 

Best filed a direct appeal with the Seventh Circuit, and on

October 24, 2005, the Court of Appeals affirmed the conviction.

See United States v. Best, 426 F.3d 937 (7th Cir. 2005). The

Seventh Circuit did, however, return the case to this Court for a

limited remand pursuant to United States v. Paladino, 401 F.3d 471,

483-84 (7th Cir. 2005). After this Court received written

arguments on the Paladino issue, it entered an order on March 7,

2006, finding that the original sentence calculated under the

United States Sentencing Guidelines was fair and reasonable, and

that the Court would have given the same sentence had it known that

the Guidelines were merely advisory and not mandatory. The Seventh

Circuit then affirmed Petitioner’s sentence. See United States v.

Best, 175 Fed.Appx. 755 (7th Cir. 2006). Best also filed a

petition for certiorari, which was denied on February 20, 2007.

See Best v. United States, 127 S.Ct. 1304 (2007).
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On February 19, 2008, Best filed a Petition under 28 U.S.C. §

2255 to Vacate, Set Aside, or Correct Sentence By a Person in

Federal Custody. In that petition, Best set forth numerous

arguments, claiming he was denied effective assistance of counsel

during pretrial motions and trial, on appeal, and during the

sentencing proceedings. This Court entered a detailed order on

September 22, 2008, denying the section 2255 petition. 

Separate from his section 2255 petition, Best filed a motion

for time reduction under 18 U.S.C. section 3582 on September 5,

2008. In that motion, Best argued he was entitled to a sentence

modification pursuant to 18 U.S.C. section 3582(c) in light of the

November 1, 2007, United States Sentencing Guidelines U.S.S.G. §

2D1.1(c) “crack” amendment as applied retroactively by U.S.S.G. ¶

1B1.10. This Court denied Best’s request for a sentencing

modification in an order dated October 8, 2008. 

Best then filed a motion to reopen the time to file an appeal

under Rule 4(A), requesting that the Court reopen the time to

appeal for both Best’s section 2255 motion and section 3582 motion.

Best also filed a notice of appeal on March 16, 2009, in which he

stated that he did not receive the Court orders for the denial of

his section 2255 and 3582 motions. Pursuant to Federal Rule of

Appellate Procedure 22(b), the Court treated the notice of appeal

as a petition for a certificate of appealability under 28 U.S.C.

section 2253. In an order dated March 31, 2009, this Court denied
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Best’s request to reopen the time to file an appeal from the order

denying the motion to reduce sentence under 18 U.S.C. section 3582.

The Court granted to the motion to reopen the time to file an

appeal as to Best’s appeal of the Court’s denial of his section

2255 petition; however, the Court denied Best’s request for a

certificate of appealability. 

Best filed the instant motion under Rule 60(b)(3) on May 1,

2009. In it, he argues that his conviction was obtained through

fraud, misrepresentation, or prosecutorial misconduct, because (1)

the search warrant obtained for 798 Porter Street was not signed by

the judge, but instead forged; and (2) Best was selectively

prosecuted. 

DISCUSSION

In addressing a Rule 60(b) motion, this Court must first

determine whether it has jurisdiction to entertain the motion.

Under certain circumstances, a Rule 60(b) motion must be treated as

a successive habeas petition. See Dunlap v. Litscher, 301 F.3d

873, 875 (7th Cir. 2002); Harris v. Cotton, 296 F.3d 578, 579-80

(7th Cir. 2002) (citations omitted) (“Prisoners are not allowed to

avoid the restrictions that Congress has placed on collateral

attacks on their convictions . . . by styling their collateral

attacks as motions for reconsideration under Rule 60(b).”). If a

Rule 60(b) motion is in effect a second or successive petition, a
5

district court lacks jurisdiction to consider it unless the court

of appeals has granted the petitioner permission to file such a

petition. See 28 U.S.C. § 2255; Dunlap, 301 F.3d at 875

(explaining how 28 U.S.C. section 2255, paragraph 8, is “clear and

bar[s] a district court from using Rule 60(b) to give a prisoner

broader relief from a judgment rendered by the court in the

prisoner’s [2255] proceeding.”). 

In the instant case, the Government urges that this Court does

not have subject matter jurisdiction over Best’s motion because

Rule 60(b) does not apply in criminal cases. Several of the cases

cited by the Government involve criminal proceedings, such as the

criminal forfeiture order in United States v. Mosavi, 138 F.3d

1365, 1366 (11th Cir. 1998), and United States v. Paschal, No. 02

C 8745, 98 CR 889-2, 2002 WL 31719624, at *2 (N.D. Ill. Dec. 4,

2002) (emphasis in original) (holding “it is well-settled that a

defendant cannot challenge a criminal conviction under the Federal

Rules of Civil Procedure.”). However, as pointed out by Best in

his reply motion, he has filed the instant motion attacking the

Court’s order on his section 2255 motion, which is a civil case.

This Court agrees with the Government that it lacks jurisdiction

over Best’s present motion, but not because Rule 60 is inapplicable

to criminal cases; rather, it is because Best’s filing is really a

successive 2255 motion, and he must first seek permission from the

Seventh Circuit before this Court can address it. See Dunlap, 301
6

F.3d at 875. 

Best relies upon Gonzalez v. Crosby, 545 U.S. 524 (2005), as

a basis for permitting him to seek relief under Rule 60(b). In

Gonzalez, the Court held that a motion under Rule 60(b) containing

certain claims, such as when a petitioner claims that a subsequent

change in substantive law is a reason justifying relief from a

previous denial of a claim, “is, if not in substance, a ‘habeas

corpus application,’ at least similar enough that failing to

subject it to AEDPA's restrictions on successive habeas petitions

would be ‘inconsistent with’ [2254].” Id. at 524. In making that

finding, the Supreme Court approved the holdings of the Seventh

Circuit and its sister circuits in cases such as Dunlap, 301 F.3d

at 876. However, Gonzales also recognized that certain issues

presented in Rule 60(b) motions should not be construed as

successive petitions. Gonzales, 545 U.S. at 532; see also Dunlap,

301 F.3d at 876 (“It is only when Rule 60(b) conflicts with AEDPA

that it is unavailable to a prisoner . . . [not when, for example,]

the state procured dismissal of a prisoner’s first federal habeas

corpus proceeding by making fraudulent representations to the

district court . . . .”). 

Whether a Rule 60(b) motion is properly considered a

successive petition hinges on whether the arguments presented in

the motion constitute a "claim," as the term claim is used in

section 2244(b). The Court determined that a petitioner brings a
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“claim” when his motion “attacks the federal court’s previous

resolution of a claim on the merits.” Gonzales, 545 U.S. at 532

(emphasis in original). The Court distinguished the case where a

Rule 60(b) motion attacks “some defect in the integrity of the

federal habeas proceedings.” Id. In those cases (where no “claim”

is presented), “there is no basis for contending that the Rule

60(b) motion should be treated like a habeas petition.” Id. at

533. “If neither the motion itself nor the judgment from which it

seeks relief substantively addresses federal grounds for setting

aside the movant’s state conviction, allowing the motion to proceed

on its own terms creates no inconsistency with the habeas statute

or rules.” Id. Gonzalez’s reasoning has been extended to section

2255 motions which implicate similar concerns of successiveness.

See United States v. Scott, 414 F.3d 815, 816 (7th Cir. 2005).

Therefore, where a motion challenges a perceived “defect in the

integrity of the proceedings” under section 2255, a Rule 60(b)

motion is appropriate. 

Although Best tries to couch his motion as an attack on the

integrity of the prior section 2255 proceedings, he is actually

trying to revisit the issues already raised in his prior section

2255. Best argues in this Rule 60 motion that the search warrant

for 798 Porter Street was obtained by fraud and contends that he

was selectively prosecuted. Both of these arguments were made,

although in a slightly different form, in Best’s section 2255
8

motion. There, Best claimed that his trial counsel was ineffective

for failing to investigate and timely file a suppression motion

based on the allegedly illegal search of 798 Porter Street, and

that his appellate counsel was ineffective when she failed to

appeal this Court’s decision denying the motion to suppress related

to 798 Porter Street. [DE #628, pp. 8-10, 12, 19-20.] Best also

claimed in his section 2255 petition that his trial counsel was

ineffective for failing to argue he was selectively prosecuted. [DE

#628, pp. 3-6, 11.] Both of these arguments, also advanced by

Best in this Rule 60 motion, are “claims” under Gonzalez because he

is attacking this Court’s previous resolution of a claim on the

merits. Gonzalez, 545 U.S. at 532. Best is not truly questioning

the integrity of the habeas proceedings. For example, he is not

asserting fraud on the Court during the habeas corpus proceedings,

and he is not arguing that a previous ruling that precluded a

merits determination was in error - for example, failure to

exhaust, procedural default, or statute of limitations. Id. at 532

n. 4. Accordingly, Best’s present motion does not set forth a

“defect in the integrity of the proceedings” in the Court’s

decision to deny relief under section 2255. Id. at 532. Instead,

the Rule 60(b) motion attempts to repeat the same substantive

arguments made in his original 2255 motion.

As a result, Best’s Rule 60(b) motion raises claims for relief

rather than challenges to defects in a prior collateral review
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proceeding, and must be treated as a successive section 2255

motion. Best was required to seek authorization from the Seventh

Circuit prior to filing this motion, which he did not do. This

Court lacks jurisdiction to entertain this motion without

authorization from the Seventh Circuit. Accordingly, Best’s Rule

60(b) motion is dismissed for lack of jurisdiction. 

CONCLUSION

For the reasons set forth above, Best’s Motion For Relief

Under Rule 60(B)(3) is DISMISSED for lack of jurisdiction. The

Clerk is ORDERED to send a copy of this order, along with this

Court’s order denying his section 2255 motion [DE #666], this

Court’s order denying his section 3582 motion [DE #669], and a copy

of the docket sheet from entries 565 until the present, to Jason

Best, Prisoner #34828-077, Victorville FCI - 5300, P.O. Box 5300,

Adelanto, California 92301, or his most recent address.

DATED: June 2, 2009 /s/RUDY LOZANO, Judge

United States District Court