USA v. Lee et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
)
Plaintiff, ) ORDER DENYING RULE 60(b)
) MOTION FOR RELIEF
vs. )
) Case No. 3:09-cr-00155-02
Marcus Jermaine Royston, )
)
Defendant. )
Before the Court is Defendant Marcus Jermaine Royston’s Rule 60(b)(6) motion for relief
filed on March 7, 2022. Doc. No. 821, 823. The United States responded in opposition to the
motion on April 15, 2022. Doc. No. 827. Royston filed his reply on May 9, 2022. Doc. No. 828.
Royston requests the Court vacate his sentence based on a double jeopardy issue related to use of
his prior convictions to enhance his sentence, and ineffective assistance of counsel related to the
alleged double jeopardy issue. Doc. No. 821, 823. Royston also moves for the appointment of
counsel, oral argument, and an evidentiary hearing. Id. For the reasons below, the motion is
denied.
I. BACKGROUND
On September 1, 2010, this Court sentenced Royston to life imprisonment for two drug
distribution offenses. Doc. No. 392. Royston appealed. Following remand from the Eighth Circuit
Court of Appeals, Royston was sentenced to 300 months’ imprisonment under the revised
sentencing provisions of the Fair Sentencing Act. Doc. No. 616.
On August 30, 2013, Royston filed a motion to vacate Under 28 U.S.C. § 2255. Doc. No.
648. This Court rejected all but two of Royston’s claims and ordered an evidentiary hearing on the
remaining issues. Doc. No. 684. Following the evidentiary hearing, this Court denied the
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remaining claims and declined to issue a certificate of appealability. Doc. No. 724. Royston
appealed and filed an application for a certificate of appealability to the Eighth Circuit, which was
denied. Royston v. United States, No. 16-2316 (8th Cir. Oct. 26, 2016). Royston then filed a
petition for a writ of certiorari in the Supreme Court on January 24, 2017, which was not granted.
Royston v. United States, 137 S. Ct. 1235 (2017).
On May 18, 2017, Royston filed a petition for leave to file a successive habeas petition in
the Eighth Circuit. Doc. No. 743. The Eighth Circuit denied Royston’s petition. Id. On November
20, 2017, Royston filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). Doc. No.
746. In a supplemental filing, he requested a downward departure from the career offender
guideline range due to his allegedly overstated criminal history. Doc. No. 750. The United States
opposed his motion, arguing Royston’s career offender status precluded relief, a downward
departure was not procedurally possible, and the motion was otherwise meritless. Doc. No. 756.
This Court denied Royston’s motion on May 21, 2018. Doc. Nos. 759, 760, 761. Royston appealed,
and the Eighth Circuit summarily affirmed. United States v. Royston, No. 18-2251 (8th Cir. July
26, 2018). Royston then filed a petition for a writ of certiorari in the Supreme Court which was
not granted. Royston v. United States, No. 18-7057 (U.S. Feb. 19, 2019).
On May 11, 2018, Royston filed a motion under Federal Rule of Civil Procedure 60(b)
“Seeking relief From an Abuse of discretion by the District Court. And asking the court to rule on
the merits of court document 699 (Actual Innocence Claim).” Doc. No. 757. This Court denied
this motion as an unauthorized second or successive motion under 28 U.S.C. § 2255. Doc. No.
758.
On February 4, 2022, Royston filed a motion to reduce sentence based on the First Step
Act of 2018, which made the sentencing provisions of the Fair Sentencing Act of 2010 retroactive.
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Doc. No. 778. The United States filed a response in opposition. Doc. No. 781. This Court denied
the motion as Royston had already received the benefit of the Fair Sentencing Act of 2010 when
he was resentenced following remand from the Eighth Circuit on November 12, 2012. Doc. No.
782.
On March 20, 2020, Royston filed a Rule 60(b) motion asking this Court to review his
actual innocence claim and requesting a hearing. Doc. No. 785. This Court denied his motion,
finding Royston had previously raised an actual innocence claim under 28 U.S.C. § 2255 that was
denied on the merits, and the claim was therefore an unauthorized second or successive motion
under 28 U.S.C. § 2255. Doc. No. 787. This Court also noted it would reach the same conclusion
on the merits of an actual innocence claim. Id.
On April 10, 2020, Royston filed a motion to amend his Rule 60(b) motion to ask the Court
to conduct an evidentiary hearing on his actual innocence claim. Doc. No. 788. This Court denied
the motion. Doc. No. 789. Royston appealed. The Eighth Circuit dismissed the appeal and denied
a certificate of appealability. Royston v. United States, No. 20-1841 (8th Cir. Aug. 4, 2020).
Royston again filed a motion to reduce sentence on September 8, 2020, citing the ongoing
COVID-19 pandemic. Doc. No. 797. The United States opposed his motion. Doc. No. 798. This
Court denied his motion on October 20, 2020. Doc. No. 803. Royston filed the instant motion on
March 7, 2022. Doc. No. 821, 823.
II. DISCUSSION
Royston argues his constitutional rights were violated by the use of his prior convictions
to enhance his sentence, and that he received ineffective assistance of counsel regarding the alleged
prior conviction issue. The United States responded and opposed the motion, arguing—among
other things—that this is a second or successive § 2255 motion that must be authorized by the
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Eighth Circuit. Royston counters that this case presents new claims that have yet to be ruled upon
by this Court. While these may be new claims, they are still successive under § 2255 and Royston’s
motion fails.
A. Legal Standards
Federal Rule of Civil Procedure 60(b)(6) authorizes courts to grant relief from final
judgments for “any other reason that justifies relief.” A movant must present “extraordinary
circumstances” to justify relief under Rule 60(b)(6). Davis v. Kelley, 855 F.3d 833, 835 (8th Cir.
2017). “Such circumstances will rarely occur in the habeas context.” Buck v. Davis, 137 S. Ct.
759, 772 (2017) (quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). The Eighth Circuit
stated the following regarding limitations on actions brought under Rule 60(b)(6) by federal habeas
petitioners:
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposed
significant restrictions on second or successive state habeas corpus
applications and their federal counterpart, § 2255 motions for post-conviction
relief. See 28 U.S.C. §§ 2244(b), 2255(h); Baranski v. United States, 880 F.3d 951,
954-55 (8th Cir. 2018). Under AEDPA, any claim adjudicated in a prior petition
“shall be dismissed,” § 2244(b)(1). A claim not previously adjudicated “must be
dismissed unless it relies on either a new and retroactive rule of constitutional law
or new facts showing a high probability of actual innocence.” Gonzalez, 545 U.S.
at 530, 125 S. Ct. 2641, citing § 2244(b)(2). Though AEDPA did not directly
circumscribe Rule 60(b), the Supreme Court held in Gonzalez that the
restrictions in § 2244(b) apply to Rule 60(b) motions that present “new claims
for relief.” Id. at 531, 125 S.Ct. 2641. The Court expressly included in this class
of Rule 60(b) motions those that “seek leave to present ‘newly discovered evidence’
. . . in support of a claim previously denied,” and those that “contend that a
subsequent change in substantive law is a ‘reason justifying relief.’ ” Id. By
contrast, no “claim” is presented when a Rule 60(b) motion only attacks “some
defect in the integrity of the federal habeas proceedings.” Id. at 532, 125 S. Ct.
2641; see Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009), cert. denied, 559 U.S.
1051, 130 S. Ct. 2367, 176 L. Ed. 2d 566 (2010).
Rouse v. United States, 14 F.4th 795, 799 (8th Cir. 2021) (emphasis added). In sum, the restrictions
of AEDPA generally apply to Rule 60(b) motions unless the motion only attacks a defect in the
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integrity of the federal habeas proceedings. The restrictions in § 2244(b) therefore apply to Rule
60(b) motions that present “new claims for relief.” Id. at 799–802 (8th Cir. 2021) (quoting
Gonzalez, 545 U.S. at 531).
B. Analysis
The Court has reviewed the motion as required by Rule 4(b) of the Rules Governing
Section 2255 Proceedings. While framed as a Rule 60(b)(6) motion, because two new claims are
asserted, § 2255 applies. This is at least the third § 2255 motion Royston has filed.1 Before a
successive § 2255 motion may be filed in the district court, the applicant must move the appropriate
court of appeals for an order authorizing the district court to consider the motion. See 28 U.S.C.
§§ 2244(3), 2255(h); United States v. Lambros, 404 F.3d 1034, 1036-37 (8th Cir. 2005). If a
federal inmate files a second or successive § 2255 motion without the necessary authorization, the
district court enjoys broad discretion, either to dismiss the motion or transfer it to the court of
appeals. Id. In the broad exercise of its discretion, the Court finds that dismissal is warranted.
Even if the Court were to address the merits of motion, the result would be the same. As
noted, “Rule 60(b) authorizes relief in only the most exceptional of cases.” Holmes v. United
States, 898 F.3d 785, 791 (8th Cir. 2018) (citation omitted). The merits of the double jeopardy
claim are exceedingly weak as it is well-settled that prior convictions may enhance punishment for
a later conviction. Witte v. United States, 515 U.S. 389, 400 (1995); United States v. Thomas, 895
F.2d 1198, 1201 (8th Cir. 1990). Given the inherent weakness of the double jeopardy argument,
the Court cannot conclude Royston’s representation fell below an objective standard of
1 Because this is a successive § 2255 motion, the Court is not required to employ the United States
v. Morales, 304 F.3d 764 (8th Cir. 2002), procedure before reclassifying the motion. See Boyd v.
United States, 304 F.3d 813 (8th Cir. 2002) (Morales procedure not required before dismissal of
motion that amounted to a second or successive § 2255 motion).
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reasonableness or that he was prejudiced by the alleged deficiency—the standard for ineffective
representation. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Even when ignoring that
this is a successive motion under§ 2255, Royston fails to clear Rule 60(b)’s high bar for relief.
III. CONCLUSION
Having reviewed the entire record and relevant legal authority, the Court concludes that
Royston’s Rule 60(b) motion is in substance a successive habeas petition filed without
authorization from the Eighth Circuit Court of Appeals under 28 U.S.C. § 2255(h). Accordingly,
the Court issues the following ORDER:
(1) Royston’s motion (Docs. No. 821, 823) is DISMISSED;
(2) Royston’s motion for the appointment of counsel, oral argument, and an
evidentiary hearing (Doc. No. 316) is DENIED as moot;
(3) The Court certifies that an appeal from the denial of this motion may not be
taken in forma pauperis because such an appeal would be frivolous and
cannot be taken in good faith. Coppedge v. United States, 369 U.S. 438,
444-45 (1962); and
(4) Based upon the entire record before the Court, dismissal of the motion is
not debatable, reasonably subject to a different outcome on appeal, or
otherwise deserving of further proceedings. Therefore, a certificate of
appealability will not be issued by this Court. Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983); Tiedeman v. Benson, 122 F.3d 518, 520-22 (8th Cir.
1997). If the defendant desires further review of his motion, he may request
issuance of a certificate of appealability by a circuit judge of the Eighth
Circuit Court of Appeals.
IT IS SO ORDERED.
Dated this 27th day of May 2022.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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