                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

       _________________________________________
                                                 )
       UNITED STATES,                            )
                                                 )
                    v.                           ) Criminal No. 07-cr-0152-6 (ESH)
                                                 )
       HELERY R. PRICE,                          )
                                                 )
             Petitioner.                         )
       _________________________________________ )


                                  MEMORANDUM OPINION

       Before the Court are petitioner Helery R. Price’s motion pursuant to Federal Rule of Civil

Procedure 60(b) for relief from this Court’s previous denial of his motion under 28 U.S.C.

§ 2255 (see Mot. for Relief, ECF No. 416), and the government’s motion to transfer petitioner’s

motion to the Court of Appeals for the District of Columbia as a second or successive § 2255

motion. (See Mot. to Transfer, ECF No. 418.) For the reasons stated herein, the Court concludes

that it lacks jurisdiction over Price’s motion and grants the transfer to the Court of Appeals

pursuant to 28 U.S.C. § 1631.

                                         BACKGROUND

       On August 7, 2008, Price was sentenced to life in prison for his part in a conspiracy to

distribute and possess with intent to distribute one kilogram or more of PCP, in violation of 21

U.S.C. §§ 841(a)(1), 848(b)(1)(A)(iv), and 846. (See Mot. to Transfer at 2–3.) The life sentence

was required based upon the Court’s application of a sentencing enhancement under 21 U.S.C.

§ 841(b), due to Price’s two prior felony drug convictions. Prior to the application of this

enhancement, the Court asked Price to “affirm” the two predicate convictions that supported the

enhancement—a 1993 conviction in the U.S. District Court for the District of Columbia, and a
1988 conviction in the Superior Court for the District of Columbia. (See id. at 2; see also June

16, 2008 Order re: Prior Convictions, ECF No. 222.) Price’s attorney filed a response saying

that Price affirmed the convictions. (See Reply, ECF No. 227.)

       However, approximately a month later, Price filed, pro se, a letter explaining that he

wished to challenge his 1988 conviction as “outside of the applicable time period to constitute

me a Carreer [sic] Offender.”1 (July 24, 2008 Letter, ECF No. 257.) Despite this letter, no

further challenge to the use of Price’s 1988 conviction was made, and “[d]uring the sentencing

hearing, neither petitioner nor his counsel challenged the predicate convictions used to enhance

his sentence.” (See Mot. to Transfer at 3.) Price appealed, and the Court of Appeals affirmed his

conviction on June 5, 2012. See United States v. Glover, 681 F.3d 411 (D.C. Cir. 2012).

       Price moved for relief under § 2255 on October 25, 2013. (See Mot. to Vacate, ECF No.

329.) This Court denied Price’s motion but granted a certificate of appealability on two issues

not relevant to the instant motion. Once again, no mention was made of the use of Price’s 1988

conviction in his original sentencing. The Court of Appeals affirmed the denial of Price’s § 2255

motion on October 10, 2017. See United States v. Glover, 872 F.3d 625 (D.C. Cir. 2017).

       Price’s current motion, which is “for relief from a judgment or order,” was filed on

October 2, 2019. (See Mot. for Relief at 1.) Price seeks relief on the ground that counsel for his

§ 2255 motion omitted claims of a constitutional dimension arising from the use of his 1988

conviction in the 2008 sentencing. He argues that counsel for the Motion to Vacate should have

included in the § 2255 motion that: (1) “despite Mr. Price’s expressed challenge to a predicate



1
 Contrary to his letter, Price was not sentenced under the Career Offender Guidelines. See
U.S.S.G. § 4B1.1. Rather, he was sentenced under a prior version of 21 U.S.C. § 841(b)(1),
which was effective until April 14, 2009, and which required that a life sentence be imposed for
certain drug crimes where a defendant already had “two or more prior convictions for a felony
drug offense,” regardless of when such convictions occurred. See 21 U.S.C. § 841(b)(1).
                                                2
conviction . . . trial counsel instead affirmed it”; and (2) counsel for his direct appeal also did not

raise any challenge to the predicate conviction. (See id. at 1.)2 The government moved on

November 4, 2019, to transfer Price’s motion to the Court of Appeals on the ground that

although styled as a Rule 60(b) motion, it is in effect a second or successive § 2255 motion.

                                             ANALYSIS

I.     Legal Standards

       “A second or successive motion [under § 2255] must be certified . . . by a panel of the

appropriate court of appeals to contain” certain newly discovered evidence or the availability of a

new, retroactively applicable rule of constitutional law before it can be entertained by a district

court. See 28 U.S.C. § 2255(h); see also United States v. Arrington, 763 F.3d 17, 23 (D.C. Cir.

2014) (“[A] movant who seeks to bring a second or successive § 2255 motion must obtain pre-

filing authorization from a panel of the appropriate court of appeals.” (internal quotation marks

omitted)). Such certification is carried out as provided in 28 U.S.C. § 2244. See 28 U.S.C.

§ 2255(h).

       Under Federal Rule of Civil Procedure 60(b), “the court may relieve a party or its legal

representative from a final judgment, order, or proceeding” for one of five enumerated grounds

or for “any other reason that justifies relief.” Such motions must be made “within a reasonable

time frame,” which is defined as “no more than a year” for motions made under Rule 60(b)(1)-

(3). While the rule “provides courts with authority adequate to enable them to vacate judgments

whenever such action is appropriate to accomplish justice,” the Supreme Court has cautioned



2
  Price’s letter in 2008 complained that his conviction in 1988 should not have been used to
calculate his Guideline range under the Career Offender Guideline. See supra note 1. In
contrast, his primary argument regarding the 1988 conviction, as articulated in the present
motion, is that trial counsel in 1988 failed to appeal the conviction, although Price does not
indicate the grounds on which it could have been appealed. (See, e.g., Mot. for Relief at 13.)
                                                   3
that such authority “should only be applied in extraordinary circumstances.” Liljeberg v. Health

Servs. Acquisition Corp., 486 U.S. 847, 864 (1988) (internal quotation marks omitted).

       The Supreme Court concluded in Gonzalez v. Crosby, 545 U.S 524 (2005), that although

the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “did not expressly

circumscribe the operation of Rule 60(b)[,] . . . [u]sing Rule 60(b) to present new claims for

relief from a . . . judgment of conviction—even claims couched in the language of a true Rule

60(b) motion—circumvents AEDPA’s requirement that a new claim be dismissed unless it relies

on either a new rule of constitutional law or newly discovered facts.” Id. at 529–31.

Nevertheless, a 60(b) motion that attacks “some defect in the integrity of the federal habeas

proceedings,” rather than the substance of the district court’s resolution on the merits, should not

be treated as a second or successive habeas petition. See id. at 532. This is because such

motions do not “circumvent[] AEDPA’s requirement that a new claim be dismissed unless it

relies on either a new rule of constitutional law or newly discovered facts.” Id. at 531. The

Court of Appeals has applied the reasoning of Crosby—which analyzed the claim of a state

petitioner pursuant to 28 U.S.C. § 2254—to § 2255 cases as well. See Arrington, 763 F.3d at 22.

II.    Price’s motion attacks the merits of his previous § 2255 denial, and thus must satisfy
§ 2255(h)’s requirements for a second or successive motion.

       Although Price attempts to cast his Rule 60(b) motion as one that challenges a “defect in

the integrity of the federal habeas proceedings” (see Mot. for Relief at 1 (quoting Crosby, 545

U.S. at 532)), his motion falls squarely within the category of motions that Crosby describes as

“in substance a successive habeas petition.” Id. at 531.

       Price first claims that his Motion to Vacate counsel should have brought a claim that his

trial counsel was ineffective because he failed to object to use of the predicate 1988 conviction.

However, this type of claim is directly addressed in Crosby. There, the Supreme Court cited a


                                                 4
case from the United States Court of Appeals for the Second Circuit, Harris v. United States, 367

F.3d 74 (2d Cir. 2004), as a paradigmatic example of a case in which “a pleading, although

labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated

accordingly.” Crosby, 545 U.S. at 531. In Harris, the petitioner argued that he should receive

relief under Rule 60(b) because “he was prejudiced by [his lawyer’s] omission as habeas counsel

[of a claim] in the initial habeas proceeding.” See 367 F.3d at 82.3 Price makes the same

argument as the defendant in Harris, and therefore, the Court must reach the same result as

required by Crosby. See 545 U.S. at 423 n.5 (“[A]n attack based on the movant’s own conduct,

or his habeas counsel’s omissions, . . . ordinarily does not go to the integrity of the proceedings,

but in effect asks for a second chance to have the merits determined favorably.”). Moreover,

Price’s argument that his Motion to Vacate counsel should have brought up the failure of his

counsel on direct appeal regarding the 1988 conviction is no different. “[D]espite the label as a

Rule 60(b) motion, [Price’s] pleading ultimately ‘seeks to add a new ground for relief’” from his

conviction,” and must be treated as a second or successive § 2255 motion. See United States v.

White, 2018 WL 10398026, at *2 (D.D.C. Jan. 21, 2018) (quoting Crosby, 545 U.S. at 523).




3
  Although the Court of Appeals in Harris treated the petitioner’s argument as one that went to
“the integrity of his habeas proceedings,” and thus considered the Rule 60(b) motion on the
merits, see Harris, 367 F.3d at 81–82, the Supreme Court’s opinion in Crosby makes it clear that
this Court should consider such motions as “in substance a successive habeas petition.” Crosby,
545 U.S. 531.
                                                  5
                                       CONCLUSION

       Accordingly, the Court will grant the government’s motion to transfer Price’s motion to

the Court of Appeals pursuant to 28 U.S.C. § 1631. A separate Order accompanies this

Memorandum Opinion.




                                                           _______________________

                                                           ELLEN S. HUVELLE
                                                           United States District Judge
Date: February 18, 2020




                                               6
