United States v. Kevin Wilson ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0430n.06
Nos. 10-1079/11-1716
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT
Apr 18, 2012
UNITED STATES OF AMERICA, ) LEONARD GREEN, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
KEVIN TYRONE WILSON, ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
BEFORE: NORRIS, CLAY, and GRIFFIN, Circuit Judges.
PER CURIAM. Kevin Tyrone Wilson, a federal prisoner, appeals through counsel the denial
of his motion for relief from judgment, filed pursuant to Federal Rule of Civil Procedure 60(b)(6),
in his postconviction proceedings.
In 1990, a jury convicted Wilson of conspiracy to distribute cocaine and cocaine base. He
was sentenced to 360 months of imprisonment. In 1992, Wilson filed a motion in the district court
seeking to have his federal sentence run concurrently with a prior state sentence. The district court
construed this motion as filed under 28 U.S.C. § 2255, and granted the relief requested. In 1997,
Wilson filed a motion under § 2255, which the district court construed as a second or successive
motion and transferred to this court to determine whether the motion should be authorized. This
court denied authorization.
In 2005, Wilson filed his motion for relief from judgment, citing Rule 60(b)(6), attacking the
district court’s order transferring his § 2255 motion to this court for authorization. He relied on the
Nos. 10-1079/11-1716
United States v. Wilson
2003 decision of the Supreme Court in Castro v. United States, 540 U.S. 375, 383 (2003), which
held that a district court should warn a pro se movant that it is construing a motion as a § 2255
motion that will bar further motions under that section, and give the movant the opportunity to
withdraw his motion. The district court denied Wilson’s motion in 2006. Wilson filed a timely
motion to reconsider that order. Because the motion for reconsideration was not ruled on, this court
remanded to the district court for such a ruling when Wilson filed a notice of appeal in 2010 (Case
No. 10-1079). The district court denied reconsideration in 2011, which rendered the 2010 notice of
appeal effective. Wilson filed another notice of appeal following the ruling on the motion for
reconsideration (Case No. 11-1716). The two appeals have been consolidated.
We review the denial of a motion for relief from judgment under Rule 60(b) for an abuse of
discretion. Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596 (6th Cir. 2006). We find no abuse of
discretion in this case, because we have previously held that a change in decisional law is not an
extraordinary circumstance warranting relief under Rule 60(b)(6). Blue Diamond Coal Co. v. Trs.
of UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001); see also Gonzalez v. Crosby,
545 U.S. 524, 536 (2005) (interpretation of a statute is not an extraordinary circumstance under
Rule 60(b)(6) warranting reopening of final judgments).
Moreover, the district court correctly noted that granting Wilson’s motion for relief from
judgment would violate the law-of-the-case doctrine. See United States v. Moored, 38 F.3d 1419,
1421 (6th Cir. 1994). The prior order of this court denying Wilson authorization to file his 1997
motion impliedly resolved the issue of whether the motion was second or successive and precluded
the district court from reconsidering the issue under the law-of-the-case doctrine. See Keith v.
Bobby, 618 F.3d 594, 600-01 (6th Cir. 2010). Although an exception to the law-of-the-case doctrine
-2-
Nos. 10-1079/11-1716
United States v. Wilson
may be made where there has been a change in the law, Mitchell v. Rees, 261 F. App’x 825, 828 (6th
Cir. 2008), reliance on a change in the law renders Wilson’s motion for relief from judgment one
properly filed under Rule 60(b)(1), and therefore untimely. Id. at 829-30.
Accordingly, the district court’s denial of Wilson’s motion for relief from judgment is
affirmed.
-3-