United States District Court, S.D. Mississippi, Northern Division
CURTIS J. HARDY
UNITED STATES OF AMERICA
T. WINGATE, UNITED STATES DISTRICT JUDGE
cause is before the court on the pro se Motions of the
Petitioner for Relief from Judgment Under Federal Rule of
Civil Procedure 60(b)(6) and 2255(f)(4) [doc. no.
130] and [doc. no. 135]. Petitioner
Curtis Hardy is a federal prisoner currently in the custody
of the Federal Bureau of Prisons. Because petitioner filed
his motion pro se, this court liberally construes his
documents and holds them to a less stringent standard than
formal pleadings drafted by an attorney. Erickson v.
Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007); Haines
v. Kerner, 404 U.S. 519, 92 S.Ct. 594 (1972).
11, 2003, petitioner was found guilty by a jury of bank
robbery in violation of 18 U.S.C. § 2113(a) and (d), and
of brandishing a gun during a crime of violence in violation
of 18 U.S.C. §924(c) (1). Presentence Investigation
Report [Sealed doc. no. 148]. This court sentenced him
on October 3, 2003, to serve a total of 384 months in the
custody of the Federal Bureau of Prisons. Pursuant to
U.S.S.G. §4B1.1, this Court sentenced petitioner as a
career offender. His last criminal offense was a felony crime
of violence and he had two prior felony convictions of crimes
of violence -- robbery and armed robbery. Judgment of
Conviction [doc. no. 41]. The United States Circuit
Court of Appeals for the Fifth Circuit affirmed this district
court's judgment on August 24, 2004. The United States
Supreme Court denied Hardy's petition for writ of
certiorari on January 28, 2005.
has filed several post-conviction motions over the years,
including at least two previous motions under §2255. On
May 26, 2016, Petitioner was granted a certificate giving him
the right to file a successive §2255 motion by the Court
of Appeals. Petitioner filed his § 2255 motion on June
17, 2016. This court entered an order on April 27, 2017 [doc.
no. 121], denying that motion. Thereafter, Petitioner filed,
on June 23, 2017, a motion and supplemental motion asking
this court to reconsider its order of April 27, 2017[doc. no.
122] and [doc. no. 123].
focus of Hardy's arguments in those motions was the
ruling in Johnson v. United States, 135 S.Ct. 2551
(2015), which Hardy claimed should apply to invalidate his
sentence under the career offender provisions of the federal
sentencing guidelines. Hardy contended that because he was
sentenced under the guidelines when they were mandatory
rather than advisory, Beckles v. United States, 137
S.Ct. 886 (2017) did not foreclose the application of
Johnson to his sentence. He argued that just as the
residual clause of the career offender statute was declared
unconstitutional in Johnson, the residual clause of
the career offender provisions of the sentencing guidelines
should also be declared unconstitutional.
order of December 1, 2017 [doc. no. 126], this court denied
the motion for reconsideration. This court stated in its
order that Petitioner's prior crimes are crimes of
violence that bring him within the “career
offender” definition under U.S.S.G. §§ 4B1.1
and 4B1.2(1) without resort to the residual clause he
challenged. Additionally, Petitioner's claims were
time-barred under the 1-year limitation period of 28 U.S.C.
§2255(f) unless Petitioner could show that he filed
his motion within one year of the date the United States
Supreme Court had recognized a new right that applied to
Petitioner and that was made retroactively applicable to his
case. As this court stated in its previous order, however,
the United States Supreme Court did not create any new right
under Johnson that applies to sentences that were
enhanced under the sentencing guidelines, including sentences
imposed when the Guidelines were mandatory.
is currently attempting to appeal that ruling, but has
additionally filed the instant motions, again asking this
court to reconsider its previous orders and to grant relief
from the judgment.
Petitioner labels his motions as brought, in part, under the
auspices of Rule 60(b)(6) of the Federal Rules of Civil
Procedure (as well as under §2255), his motions are, in
actuality, successive § 2255 petitions. Hardy seeks to
have this court vacate, set aside or correct his sentence
under the provisions of 28 U.S.C. § 2255.
strictures of Title 28 U.S.C. § 2255(b) govern the
matter of hearings holding that one is not necessary if the
motion, files and record or recollection of the case show the
defendant is not entitled to relief. 28 U.S.C. § 2255;
United States v. Green, 882 F.2d 999, 1008
(5th Cir. 1989); United States v.
Raetzsch, 781 F.2d 1149, 1151 (5th Cir.
1986); United States v. Fuller, 769 F.2d 1095, 1099
(5th Cir. 1985); United States v. Guerra,
588 F.2d 519 (5th Cir. 1979). This court has
determined that a hearing in this matter is not necessary.
most recent motions of the petitioner, seeking
post-conviction relief under 28 U.S.C. §2255 must be
denied for lack of jurisdiction, because neither has been
certified by the United States Court of Appeals for the Fifth
Circuit. The current motions, despite their labels, are
nothing more than successive attempts to seek post-conviction
relief under §2255. Petitioner has not obtained
authorization from the appellate court to file a successive
motion under that statute. As petitioner has not complied
with the necessary requirements, the successive motions for
relief must be denied. See United States v. Sellers,
247 F.3d 241, 241 (5th Cir. 2001). This is true
regardless of how petitioner styles his motions. See
United States v. Rich, 141 F.3d 550, 553
(5th Cir. 1998), cert denied, 119 S.Ct. 1156
(1999) (the district court lacked jurisdiction to consider
petitioner's §2255 motion even though it was styled
as a motion to reconsider).
reasons stated, this court dismisses the motions as
successive §2255 petitions in accordance with Title 28
U.S.C. § 2255(h) and Rule 9 of the Rules Governing
Proceedings in the United States District Courts on motions
under § 2255.
THEREFORE ORDERED that Petitioner's motions under 28
U.S.C. § 2255 [doc. no. 130] and ...