Defendant waited 15 years after the denial of his §2255 motion on procedural default grounds and 15 months after an asserted intervening change in the applicable law to file a Rule 60(b) motion, thereby rendering the motion untimely. The court was further without jurisdiction to alter defendant’s sentence.
We grant the government’s motion to dismiss defendant’s Rule 60(b) motion attacking a ruling of procedural default on defendant’s underlying §2255 motion, as we are without jurisdiction to alter defendant’s sentence.
Defendant moved for relief from the grant of summary judgment to the government on defendant’s underlying motion to vacate or set aside his sentence. Defendant argued that the court erred in ruling his §2255 motion procedurally defaulted and in not applying the Holloway doctrine and other equitable principles to reduce or vacate his sentence.
In support of its motion to dismiss defendant’s Rule 60(b) motion, the government argued that defendant’s motion was an improper second or successive §2255 motion. The government further argued that the motion was untimely and that the Holloway doctrine did not apply to defendant’s case.
We first rule that defendant’s claim is properly brought under Rule 60(b) because it attacked the ruling of procedural default on his original §2255 motion and therefore was not simply a successive motion to vacate or set aside his sentence.
However, we rule that defendant’s motion is nevertheless untimely, as his initial §2255 motion was dismissed over 15 years ago. Although defendant cited recent case law that he argues indicates the court erred in finding the §2255 motion procedurally defaulted, we note that defendant then waited another 15 months after that change in the law to file his Rule 60(b) motion.
Finally, we rule that defendant is not entitled to relief under the Holloway doctrine, in which the U.S. Attorney agreed not to oppose a §2255 motion because a sentence was too harsh due to stacking of charges. We hold that defendant’s Holloway doctrine claim could be construed as an improper successive §2255 motion. In any event, we hold that we are not authorized by rule to alter defendant’s term of imprisonment, as there has been no motion by the government, nor has there been a lowering of the applicable sentencing guideline range, nor was there a mathematical error in the calculation of defendant’s sentence or an incorrect application of the sentencing guidelines.
Motion to dismiss granted.
U.S. v. Zater (Lawyers Weekly No. 002-199-18, 7 pp.) (Currie, J.) D.S.C.