The opinion of the court was delivered by: Honorable Jerome B. Simandle
Petitioner Rasheed Smith ("Petitioner" or "Smith"), a prisoner currently confined at Federal Medical Center Devens, brings a pro se motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(5), to challenge his sentence of 262 months imprisonment. [Docket Item No. 284.] Smith argues that it is no longer equitable that his sentence have prospective application in light of the Third Circuit's ruling in United States v. Gunter, 462 F.3d 237 (2006), and in the alternative, in light of the Eighth and Fourteenth Amendments of the U.S. Constitution. Petitioner also moves for the appointment of counsel to assist in his motion for relief from judgment, [Docket Item No. 299] and for an evidentiary hearing [Docket Item No. 303].
The Court disagrees with Smith's contention that his sentence should not have prospective application in light of Gunter or in light of the Eighth and Fourteenth Amendments, and accordingly, for the following reasons, his motion for relief from judgment will be denied. In addition, for the following reasons, Petitioner's motions for appointment of counsel and for an evidentiary hearing will also be denied.
On January 14, 2000, Petitioner pled guilty to one count of conspiracy to distribute and to possess with intent to distribute more than five grams of crack cocaine. (Resp't Br. Ex. A at 6.) He was sentenced by this Court on April 16, 2002 to 262 months imprisonment. (Resp't Br. at 3.)
Petitioner filed his Rule 60(b)(5) motion for relief from judgment on December 26, 2006. Rule 60(b) states, in relevant portion, "[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment . . . for the following reasons: . . . (5) . . . a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application . . . ." Fed. R. Civ. P. 60(b). Petitioner challenges his 2002 sentence in light of the 2006 Third Circuit Court of Appeals' ruling in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), which held that post-United States v. Booker, 543 U.S. 220 (2005), the 100:1 weight ratio in the Sentencing Guidelines (the "Guidelines") for drug-trafficking charges based on cocaine versus cocaine base were no longer mandatory, but merely advisory. Gunter, 462 F.3d at 243-44. Petitioner argues that because he was sentenced when the Guidelines were mandatory, his sentence is no longer equitable in light of the fact that post-Gunter, the Guidelines are merely advisory.
Petitioner argues that he should thereby receive a new sentence in which the Guidelines, specifically the discrepancies between cocaine and cocaine base sentences, are not mandatory. In the alternative, he argues that the disparate racial impact of sentences for trafficking in cocaine versus cocaine base violates the Eighth and Fourteenth Amendment.
Smith also moves for the appointment of counsel to assist him in his Rule 60(b)(5) motion for relief from judgment, in order "to insure that his constitutional rights are protected in accord with the Sixth Amendment." (Pet'r Mot. for Appt. of Counsel at 1.) Lastly, Smith moves for an evidentiary hearing in which he would have the opportunity to demonstrate the disparate racial impact of the 100:1 weight ratio in the Guidelines for drug-trafficking charges based on cocaine versus cocaine base, and to show that the majority of those negatively affected by the ratio are African-American. (Pet'r Mot. for Evidentiary Hr'g at 1.)
A. Whether Rule 60(b) is the Proper Form for Smith's Challenge
A Rule 60(b) motion is not the proper vehicle for challenging a sentence. See, e.g., United States v. O'Keefe, 169 F.3d 281, 289 (5th Cir. 1999)("Federal Rule of Civil Procedure 60(b) . . . simply does not provide for relief from a judgment in a criminal case."); United States v. Wright, 2005 WL 1168440, at *1 (D. Del. May 17, 2005); Salcedo v. United States, No. 96 CR.371 DLC, 2003 WL 22137983, at *1 (S.D.N.Y. Sep. 17, 2003). Rather, 28 U.S.C. § 2255 ("Section 2255") provides the proper form for collaterally attacking a sentence in the federal sentencing court. See 28 U.S.C. § 2255, para 1 ("A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence . . . is . . . subject to collateral attack may move the court which imposed the sentence to vacate, set aside or correct the sentence."). Because pro se litigant's papers are to be construed liberally and held to less stringent standards than those drafted by lawyers, see Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972), district courts generally re-characterize mislabeled habeas petitions as Section 2255 challenges, so as to create "a better correspondence between the substance of a pro se motion's claim and it's underlying legal basis." Castro v. United States, 540 U.S. 375 (2003); see also In re Wagner, 421 F.3d 275, 277-78 (3d Cir. 2005); United States v. Miller, 197 F.3d 644, 646 (3d Cir. 1999). Accordingly, we re-characterize Petitioner's Rule 60(b)(5) motion as a Section 2255 challenge.
Additionally, after the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposed a one-year statute of limitations and a bar on successive Section 2255 motions, petitioners frequently file Rule 60(b) motions as a means of circumventing the restrictions placed on petitioners by AEDPA. In such cases, courts have consistently re-characterized these Rule 60(b) motions as successive Section 2255 petitions and denied them. See, e.g., Bolder v. Delo, 985 F.2d 941, 942 n.1 (8th Cir. 1993); Clark v. Lewis, 1 F.3d 814, 825-26 (9th Cir. 1993). But before a court re-characterizes a Rule 60(b) motion as a first Section 2255 petition, the court must notify petitioner and give him ample opportunity to either withdraw the motion or amend it to include all relevant Section 2255 claims. See Castro v. United States, 540 U.S. 375, 383 (2003)(holding that before "a court recharacterizes a pro se litigant's motion as a first § 2255 motion," the court "must notify the pro se litigant that it intends to recharacterize the pleading" as well as "warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on 'second or successive' motions, and provide the litigant the opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has"); In re Wagner, 421 F.3d at 278. Accordingly, in a letter dated June 18, 2007, the Court has notified Smith of the re-characterization, and given him an opportunity to withdraw or amend the motion as he desires. [Docket Item No. 302.] Smith filed a response on July 6, ...