United States District Court, S.D. Texas, Corpus Christi Division
ORDER DENYING RULE 60(B) MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
Graham Jack Senior United States District Judge.
D. Bacon filed a pro se Rule 60(b) motion to
set-aside his conviction and sentence. D.E. 139. He
challenges the integrity of this Court's original
criminal proceedings on multiple grounds.
pleaded guilty to one count of possession of child
pornography in July 2009. He was sentenced in January 2010 to
120 month's imprisonment to be followed by lifetime
supervised release. The Fifth Circuit Court of Appeals
affirmed his conviction and sentence in July 2011. United
States v. Bacon, No. 10-40088 (5th Cir. 2011) (per
curiam) (designated unpublished).
filed a motion to vacate, set-aside or correct sentence in
2012. The Court denied the motion by Order and final judgment
dated September 17, 2013. Bacon filed a Motion to Alter or Amend
the Judgment that the Court granted in part and denied in
part in February 2014. Bacon filed the present motion in
attacks the integrity of the original criminal proceedings
based upon the alleged violation of his Fourth Amendment
rights during the application for a search warrant of his
home in 2009. Bacon further complains that he was deprived of
procedural and substantive due process based upon the
Government's destruction of evidence and the
Government's failure to bring evidence before the
Court. Bacon argues that this Court did not have
jurisdiction over him because the Government lost the
evidence. Next, Bacon claims that counsel was ineffective
because he failed to challenge the method by which the
Government obtained the evidence. Bacon finally contends that
he was not advised of the charges against him, what the
Government was required to prove, or the nature of his
constitutional rights. In support of his claims, Bacon attached
numerous letters to various law enforcement agencies in which
he sought materials including: 1) inventory of materials
seized from his home, 2) reports from the Cyber-Crime Unit,
3) the warrant and supporting affidavit for the search of his
home, and 4) the Notice of Destruction of Evidence with
Federal Rule of Civil Procedure 60(b)
Federal Rules of Civil Procedure are applicable to federal
habeas practice “only to the extent that they are not
inconsistent with any statutory provisions or these
rules.” Rule 12, Rules Governing Section 2255
Proceedings for the United States District Courts (2017);
United States v. Flores, 380 F.3d 371 at *1
(5th Cir., Feb. 8, 2010) (designated unpublished)
(“Rule 60(b) applies only to civil cases and
‘simply does not provide relief from a judgment in a
criminal case.'”); United States v.
O'Keefe, 169 F.3d 281, 289 (J. Dennis dissenting
from grant of motion for temporary stay pending appeal)
(“Federal Rule of Civil Procedure 60(b), therefore,
simply does not provide for relief from a judgment in a
criminal case.”); United States v. Scott, 199
F.3d 438, *1 (5th Cir., Oct. 19, 1999) (designated
unpublished) (“ Rule 60(b) is a rule of civil procedure
designed to facilitate challenges to errors in civil
judgments. The rule has no application to criminal
Rule 60 motion may be considered if it attacks the resolution
of his § 2255 motion,  but Rule 60 has no application to
his original criminal proceedings. Bacon's present motion
attacks alleged flaws in the original criminal proceedings.
Such challenges may be made by a motion to vacate, set aside
or correct sentence. Bacon has already filed a § 2255
motion that raised many of the claims he brings in the
Bacon's Motion Is Second or Successive
that Bacon should have or could have brought in his previous
§ 2255 motion are second or successive.
Gonzalez, 545 U.S. at 532 (post-judgment motion
pursuant to Rule 60(b) may be construed as second or
successive § 2255). Bacon is only entitled to a single
§ 2255 motion unless he obtains the permission of the
Fifth Circuit Court of Appeals to file a second motion.
See Gonzalez, 545 U.S. at 531; Tolliver v.
Dobre, 211 F.3d 876, 877 (5th Cir. 2000); 28 U.S.C.
§ 2244 (b)(3)(A) (“Before a second or successive
application permitted by this section is filed in the
district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court
to consider the application.”). Bacon's motion does
not indicate that he has sought or obtained such permission.
Without permission from the Fifth Circuit, this Court does
not have the power to adjudicate his claims.
appeal may not be taken to the court of appeals from a final
order in a habeas corpus proceeding “unless a circuit
justice or judge issues a certificate of
appealability.” 28 U.S.C. § 2253(c)(1)(B). An
appeal from the denial of a Rule 59(e) or Rule 60 motion
requires a certificate of appealability in all but very
narrow circumstances. Ochoa Canales v. Quarterman,
507 F.3d 884, 888 (5th Cir. 2007) (“We therefore hold .
. .that a COA is not required to appeal the denial of a Rule
60(b) motion . . . only when the purpose of the motion is to
reinstate appellate jurisdiction over the original denial of
habeas relief.”); Williams v. ...