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United States v. Bacon

United States District Court, S.D. Texas, Corpus Christi Division

April 5, 2018

UNITED STATES OF AMERICA
v.
WELLES D BACON

          ORDER DENYING RULE 60(B) MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Janis Graham Jack Senior United States District Judge.

         Welles 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.

         Bacon 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 United States v. Bacon, No. 10-40088 (5th Cir. 2011) (per curiam) (designated unpublished).

         Bacon 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.[1] 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 January 2018.

         MOVANT'S ALLEGATIONS

         Bacon 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.[2] 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.[3] 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 supporting affidavits.

         ANALYSIS

         A. Federal Rule of Civil Procedure 60(b)

         The 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 convictions.”).

         Bacon's Rule 60 motion may be considered if it attacks the resolution of his § 2255 motion, [4] 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 present motion.

         B. Bacon's Motion Is Second or Successive

         Claims that Bacon should have or could have brought in his previous § 2255 motion are second or successive.[5] 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.

         CERTIFICATE OF APPEALABILITY

         An 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. ...


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