United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Corey Bonds was convicted on one count of brandishing a
firearm in furtherance of a crime of violence-Hobbs Act
robbery-in violation of 18 U.S.C. § 924(c), and he was
sentenced to the mandatory minimum statutory penalty of 7
years of imprisonment. Judgment was entered on January 29,
2016, and Mr. Bonds did not appeal. On June 29, 2016, Mr.
Bonds filed a motion under 28 U.S.C. § 2255. In support,
he argued that his conviction was unlawful under Johnson
v. United States, 135 S.Ct. 2551 (2015), and that his
attorney was ineffective for failing to advise him of the
Supreme Court's holding in Carachuri-Rosendo v.
Holder, 560 U.S. 563 (2010). The Court dismissed that
motion, as Hobbs Act robbery remains a crime of violence even
after Johnson and Mr. Bonds procedurally defaulted
on that claim by not raising it on a direct appeal, and
Carachuri-Rosendo had no possible application to Mr.
Bonds filed a notice of appeal of that order, and has also
moved for leave to proceed in forma pauperis on
appeal. [DE 57]. Mr. Bonds is financially eligible to proceed
in forma pauperis, and though the Court did not find
that his claim was meritorious, it does not believe that his
appeal is taken in bad faith. Therefore, the Court GRANTS Mr.
Bonds' motion for leave to proceed in forma
pauperis on appeal.
addition, after filing his notice of appeal, Mr. Bonds filed
a motion under Rule 60(b), asking the Court to reconsider its
dismissal of his motion under § 2255. Mr. Bonds argues
that, even though the only ground of ineffective assistance
of counsel that he raised in his initial motion was his
counsel's failure to advise him about
Carachuri-Rosendo, there are other grounds for a
claim of ineffective assistance of counsel that he had not
raised, and the Court should have independently considered
those grounds before dismissing his motion. In particular, he
argues that his counsel was ineffective for failing to object
to a defective indictment, for permitting him to plead guilty
when the elements of his offense had not all been
established, and for failing to advise him of the mandatory
this Court lacks jurisdiction to grant Mr. Bonds' Rule
60(b) motion, as Mr. Bonds has already filed a notice of
appeal, which transfers jurisdiction to the court of appeals.
Under those circumstances, the Court may either “defer
considering the motion, ” “deny the motion,
” or, if applicable, “state either that it would
grant the motion if the court of appeals remands for that
purpose or that the motion raises a substantial issue.”
Fed.R.Civ.P. 62.1(a). The Court denies Mr. Bonds' motion,
as that would be the appropriate outcome even if this Court
did have jurisdiction over the motion. Mr. Bonds argues that
the Court erred by not considering grounds for relief that he
had not even raised in his motion, as a motion under §
2255 should be dismissed where “the motion, any
attached exhibits, and the record of prior
proceedings” demonstrate that the movant is not
entitled to relief. Rules Governing Section 2255 Proceedings
for the United States District Courts, R. 4(b) (emphasis
added). Mr. Bonds argues that because the new grounds he now
raises were present in the record, the Court should have
independently considered them before dismissing his motion.
However, Rule 4(b) does not require the Court to evaluate
arguments or claims the defendant has not even raised. Though
pro se litigants are entitled to have their filings be
construed liberally, Estelle v. Gamble, 429 U.S. 97,
107 (1976), they are not entitled to have courts raise
independent grounds for relief on their behalf. Therefore,
Mr. Bonds' Rule 60(b) motion [DE 55] is DENIED.
the Court does not reach the remaining arguments on the
merits that Mr. Bonds wishes to add to his initial petition,
as those additional arguments attacking the validity of his
underlying conviction would constitute a second motion under
§ 2255, which this Court lacks jurisdiction to
entertain. As discussed above, judgment has already been
entered dismissing Mr. Bonds' motion under § 2255.
In addition, though motions to amend a § 2255 filing can
be filed after a judgment but within the time for filing a
notice of appeal, the present motion was filed over 60 days
after entry of judgment, so it cannot fit that exception.
Specifically, judgment was entered on July 19, 2016, and Mr.
Bonds' motion certifies that it was mailed on September
21, 2016-64 days later. Accordingly, Mr. Bonds' present
motion must be considered a second motion under § 2255.
However, a defendant must first receive permission from the
court of appeals before filing such a motion. 28 U.S.C.
§ 2255(h). Until that happens, this Court lacks
jurisdiction to consider any additional claims under §
2255. Suggs v. United States, 705 F.3d 279, 282 (7th
Seventh Circuit addressed the same situation in Phillips
v. United States, 668 F.3d 433 (7th Cir. 2012). There, a
defendant filed a motion under § 2255, the district
court dismissed the motion, and the defendant filed a notice
of appeal. While the appeal was pending, and after the time
to appeal had expired, the defendant also filed a Rule 60(b)
motion in the district court in which he supplemented the
claim in his initial motion. The Seventh Circuit held that
because judgment had already been entered on the initial
motion under § 2255 and the time to appeal had expired,
the Rule 60(b) motion constituted an unauthorized second
motion under § 2255 and should have been dismissed for
lack of jurisdiction. 668 F.3d at 435-36. That same sequence