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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

 v. ) CASE NO. 1:00-CR-042

)

JAMMIE T. HAIRSTON )

)

 Defendant. )

OPINION AND ORDER

Before the court is petitioner, Jammie Hairston’s “Motion to Recall Mandate and Vacate

Judgment for Good Cause” filed pursuant to Fed.R.Civ.P. 60(b)” filed on January 9, 2006. The

Government responded on February 6, 2006 to which Hairston replied on February 16, 2006. For the

following reasons, Hairston’s motion will be DISMISSED for LACK OF JURISDICTION and his

petition deemed a successive petition pursuant to 28 U.S.C. §2255 for which prior authorization from

the Seventh Circuit Court of Appeals is required.

DISCUSSION

On August 23, 2000, a federal grand jury returned a two (2) count indictment against Hairston

alleging that he possessed more than fifty (50) grams of cocaine base crack with intent to distribute

in violation of 21 U.S.C. §841 (Count 1) and that he brandished, discharged or used or carried a

firearm during and relation to a drug trafficking crime in violation of 18 U.S.C. §924(c) (Count 2).

Hairston pleaded not guilty to both counts and proceeded to trial. A jury convicted Hairston on both

counts. Subsequently, Hairston appeared at a sentencing hearing and was sentenced to 330 months

imprisonment which included 210 months on Count 1 and a mandatory consecutive 120 months on

Count 2. The undersigned enhanced Hairston’s sentence by two points based upon a finding that he

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Hairston testified at trial that the cocaine base crack that police seized from his person at the time

of his arrest just “appeared” in his shirt pocket and he did not know how it got there. He also testified

that he did not fire shots from the gun he possessed. Both of these statements were contradicted by

overwhelming evidence at trial. Thus, the undersigned concluded that Hairston had fabricated his

testimony.

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obstructed justice by providing false testimony at trial.1

 Thereafter, on May 30, 2001, Hairston filed

his notice of appeal.

On November 16, 2001, the Seventh Circuit Court of Appeals in a two paragraph unpublished

opinion affirmed Hairston’s conviction. Hairston raised a single issue on appeal, that is, that the

evidence at trial did not show that he wanted to distribute crack or that the gun he brandished was used

during his drug business. 

Hairston then filed a petition pursuant to 28 U.S.C. §2255 wherein he alleged that the district

court erred in enhancing his sentence for obstruction of justice because the enhancement took his

sentence beyond the statutory maximum for the offense in violation of Apprendi v. New Jersey, 530

U.S. 466 (2000). Hairston also alleged ineffective assistance of counsel based upon his counsel’s

alleged failure to advise him properly with respect to whether he should have accepted the

government’s plea agreement. On February 18, 2003, the undersigned denied Hairston’s request for

§2255 relief. Hairston then filed a “Motion to Modify his Sentence” in June 2005 which the

undersigned denied by Opinion and Order dated August 18, 2005.

The present motion is Hairston’s latest attempt to vacate his conviction and sentence, this time

using Fed.R.Civ.P. 60(b) in an attempt to have this court alter its February 18, 2003 order denying his

original §2255 petition. The Government urges that the instant petition is functionally the equivalent

of a successive habeas petition and should be dismissed for lack of jurisdiction. In turn, Hairston

relies on a recent Supreme Court case, Gonzalez v. Crosby, --- U.S. ----, ----, 125 S.Ct. 2641, 2648,

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2651 (2005) as a basis for permitting him to seek relief under Fed.R.Civ.P. 60(b). However, as is

demonstrated below, he misapplies the holding in that case to his present petition.

As the Government points out, the Court in Gonzalez 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 the same requirements would

be 'inconsistent with' [§ 2254]." Id. In so finding, the Court approved the holdings of the Seventh

Circuit and its sister circuits in cases such as Dunlap v. Litscher, 301 F.3d 873, 876 (7th Cir.2002)

(finding that § 2244(b)(2) and § 2255 ¶ 8 bar a district court from using a Rule 60(b) motion "to give

a prisoner broader relief from a judgment rendered by the court in the prisoner's federal habeas corpus

(including section 2255) proceeding. Otherwise AEDPA's limitations on collateral attack would be

set at naught.").

However, the Supreme Court in Gonzales also recognized that certain issues presented in Rule

60(b) motions do not merit construal as successive petitions. Gonzales, 125 S.Ct. at 2648; 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 § 2244(b). The Court determined that a

petitioner brings a "claim" when his motion "attacks the federal court's previous resolution of a claim

on the merits." Gonzales,, 125 S.Ct, at 2648. 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--

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cases where no "claim" is presented--"there is no basis for contending that the Rule 60(b) motion

should be treated like a habeas corpus application." Id. "If neither the motion itself nor the federal

judgment from which it seeks relief substantively addresses federal grounds for setting aside the

movant's state conviction, allowing the motion to proceed as denominated creates no inconsistency

with the habeas statute or rules." Id.

The reasoning of Gonzalez v. Crosby has been extended to § 2255 motions which implicate

similar concerns of successiveness. United States v. Scott, 414 F.3d 815, 816 (7th Cir.2005). Thus,

where a motion challenges a perceived "defect in the integrity of the proceedings" under § 2255, a

Rule 60(b) motion is appropriate. 

Here, Hairston’s primary argument is that he is entitled to relief from his conviction and

sentence pursuant to the Supreme Court's decision in United States v. Booker, 543 U.S. 220(2005),

which extended the rule in Blakely v. Washington,542 U.S. 296 (2004) to strike down the mandatory

portion of the United States Sentencing Guideline regime. Hairston’s Rule 60(b) motion does not take

issue with any particular procedural aspect in the Court's decision to deny relief under 28 U.S.C. §

2255. Instead, the Rule 60(b) motion attempts to repeat the same substantive arguments made in his

original § 2255 motion and to assert new claims for relief under Booker. A Rule 60(b) motion such

as the one filed by Hairston which raises claims for relief rather than challenges to defects in a prior

collateral review proceeding, is treated as a successive § 2255 motion that is subject to 28 U.S.C. §

2244(b). See Gonzalez, 125 S.Ct. 2641.

In sum, the Court finds that because Hairston's motion attacks the substance of the Court's

resolution of his prior petition under §2255 claims on the merits, it lacks jurisdiction to entertain the

motion without authorization from the United States Court of Appeals for the Seventh Circuit. See 28

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U.S.C. 2244(b)(3); Gonzalez, 125 S.Ct. at 2649 ("a Rule 60(b) motion that seeks to revisit the federal

court's denial on the merits of a claim for relief should be treated as a successive habeas petition.").

ACCORDINGLY, Hairston’s “Motion to Recall the Mandate” is DISMISSED for lack of jurisdiction.

Entered: February 22, 2006

s/William C. Lee

United States District Court

Northern District of Indiana 

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