USA v. Newton

OCR transcription for search; preserved printed pages are authoritative

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

UNITED STATES
Vv. Cr. No. ‘'10-096~-ML

CHARLES NEWTON

MEMORANDUM AND ORDER

Petitioner Charles Newton (“Newton”), proceeding pro se, has
filed, for the second time, a motion pursuant to 28 U.S.C. § 2255,
see Dkt. Nos. 35, 52). Prior to filing the successive § 2255
motion, Newton also sought identical relief by filing a motion
under Rule 36 of the Federal Rules of Criminal Procedure (Dkt. 45).
For the reasons stated below, both motions are DENIED.

I. Background and Travel

On September 13, 2010, pursuant to a plea agreement, Newton
pled guilty to one count of possession with intent to distribute
cocaine, in violation of 21 U.S.C. S$§ 841(a) (1) and (b) (1) (C) and
851. Under the terms of the plea agreement, Newton acknowledged
that he might be adjudged a career offender and he agreed not to
“move to withdraw, vacate or alter” any prior convictions. Plea
Agreement {4.d. (Dkt. No. 2).

On April 4, 2011, Newton was sentenced to 188 months’

imprisonment, followed by 6 years’ supervised release (Dkt. No.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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13). Newton’s sentence reflected his status as a career offender,
based on two prior state court convictions for robbery and for
possession with intent to distribute cocaine, respectively. Newton
did not, at the time of sentencing, object to his career offender
designation.

Newton did not file an appeal’; however, on September 1, 2011,
he filed a “Motion to Correct Sentence,” challenging his
designation as a career offender (Dkt. No. 17). Newton’s untimely
motion?, filed more than four months after imposition of sentence,
was denied (Dkt. No. 20). The Court’s denial of Newton’s motion was
subsequently affirmed by the First Circuit Court of Appeals (Dkt.
Nos. 33, 34).

On December 12, 2012, Newton filed a first motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
(Dkt. No. 35). In this motion, Newton again contended that he
should not have been sentenced as a career offender. Because
Newton’s § 2255 motion had been filed seven months beyond the one
year period from the date on which Newton’s conviction became

final, the motion was dismissed as time-barred. Memorandum and

i

Under the plea agreement, Newton waived his right to appeal
because the sentence imposed by the Court was within Newton’s
guideline range.

2

Pursuant to Rule 35 of the Federal Rules of Criminal
Procedure, “{wlithin 14 days after sentencing, the court may
correct a sentence that resulted from arithmetical, technical, or

other clear error.” Fed. R. Crim. P. 35(a) (emphasis added).

2

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Order at 4 (Dkt. No. 42). The Court also advised Newton that the
case was not appropriate for the issuance of a certificate of
appealability (“COA”). Id. at 5.

Newton did not appeal the dismissal of his first § 2255
motion; instead, on June 16, 2014, he filed a motion for correction
of sentence under Rule 36° of the Federal Rules of Criminal
Procedure, in which he again challenged his career offender
designation (Dkt. No. 45). The government, in its objection to
Newton’s motion, correctly pointed out that (1) Rule 36 is intended
to correct clerical errors, not to re-litigate contested issues;
and (2) Newton’s motion was more akin to a successive § 2255
motion, for which he had not sought permission from the First
Circuit (Dkt. No. 48).

While his Rule 36 motion was pending, Newton filed a second
motion pursuant to 28 U.S.C. § 2255 (Dkt. No. 52). In this most
recent attempt to challenge the career offender designation, Newton
relied on a May 9, 2014 “correction” to a drug trafficking offense
of which he was convicted in state court (Dkt. No. 52-1). However,
as established by the government in its objection to Newton’s
motion, that “correction” was reconsidered and vacated by the Rhode

Island state court on March 27, 2015, see Dkt. No. 55-1, and can no

3

Pursuant to Rule 36, “[a]fter giving any notice it considers
appropriate, the court may at any time correct a clerical error in
a judgment, order, or other part of the record, or correct an error
in the record arising from oversight or omission.” Fed. R. Crim. P.
36.

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longer serve as a basis for Newton’s motion.

IIIT. Discussion

Pursuant to 28 U.S.C. § 2244(a) (3) (A), before a second or
successive habeas petition may be filed in this Court, a petitioner
must first seek an order from the appellate court authorizing the
Court to consider the petition. Newton does not assert, and there
is no indication in the case records, that Newton ever sought such
an order from the First Circuit Court of Appeals before he filed
the instant motions. Accordingly, both Newton’s Rule 36
motion-which is the functional equivalent of a § 2255 motion-and
the instant § 2255 motion are barred as successive § 2255 motions.

IV. Conclusion

Because Newton has filed two successive § 2255 petitions
without seeking or obtaining permission from the appellate court,
the June 16, 2014 Rule 36 motion and the December 11, 2014 § 2255
motion are both DENIED and DISMISSED.

Ruling on Certificate of Appealability

Pursuant to Rule ill(a) of the Rules Governing § 2255
Proceedings for the United States District Courts, this Court
hereby finds that this case is not appropriate for the issuance of
a certificate of appealability because Newton has failed to make “a
substantial showing of the denial of a constitutional right” as to
any claim, as required by 28 U.S.C. § 2253(c) (2).

Newton is advised that any motion to reconsider this ruling

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will not extend the time to file a notice of appeal in this matter.

See Rules Governing § 2255 Cases, Rule 11(a).
SO ORDERED.

/s/ Mary M. Lisi

Mary M. Lisi
United States District Judge

April 9, 2015