USA v. KERR

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NORMAN ALAN KERR, )
)
Petitioner, )
) 1:25CV721
v. ) 1:09CR290-1
)
UNITED STATE OF AMERICA, )
)
Respondent. )
RECOMMENDATION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a federal prisoner, has submitted a Motion [Doc. #295] for
reconsideration pursuant to Fed. R. Civ. P. 60(b), along with two Supplements [Doc. #296,
#298]. In the Motion, Petitioner attacks his conviction or sentence rather than seeking to
remedy a defect in the collateral review process or other non-merit aspect of the ruling on
collateral review. He alleges “fraud on the Court” but then fails to allege any fraud and
instead points to only alleged errors and changes in law. The Motion for reconsideration
therefore must be construed as a motion to vacate sentence under 28 U.S.C. § 2255. See
Gonzalez v. Crosby, 545 U.S. 524 (2005); United States v. McRae, 793 F.3d 392 (4th Cir.
2015); United States v. Winestock, 340 F.3d 200 (4th Cir. 2003). As such, Petitioner’s
pleading is defective because he failed to file his claims on the proper § 2255 forms. See
Rules Governing Section 2255 Proceedings Rule 2(b).
There is no need to put Petitioner through the extra work of submitting his claims
on the proper forms, however, because Court records reveal that Petitioner already
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challenged this conviction in a previous § 2255 action. (No. 1:14CV1094.) Therefore, the
present pleading should be dismissed for lack of jurisdiction because of Petitioner’s failure
to obtain permission from the Fourth Circuit for a second or successive § 2255 action, as
is required by 28 U.S.C. § 2244 and 28 U.S.C. § 2255. See Winestock, 340 F.3d at 200.
IT IS THEREFORE ORDERED that the Clerk send Petitioner a copy of this
Recommendation, instruction forms for filing § 2255 actions in this Court and Motions for
Authorization in the Court of Appeals, and four copies of § 2255 forms (more copies will
be sent on request). Petitioner should keep the original and two copies of the completed
§ 2255 forms which can be submitted in this Court if Petitioner obtains approval from the
Fourth Circuit.
IT IS THEREFORE RECOMMENDED that Petitioner’s “Rule 60(b)” Motion
[Doc. #295] be construed as an attempt by Petitioner to file a second or successive § 2255
action.
IT IS FURTHER RECOMMENDED that this action be dismissed due to
Petitioner’s failure to obtain certification from the Fourth Circuit as required by 28 U.S.C.
§§ 2244 and 2255 and Fourth Circuit Local Rule 22(d).
This, the 27th day of October, 2025.
Case 1:09-cr-00290-TDS Document 299 Filed 10/27/25 Page 2 of 2