IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-50715
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROY MARION JONES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(A-94-CV-222)
_________________________________________________________________
April 5, 1996
Before KING, JOLLY, and PARKER, Circuit Judges.
PER CURIAM:*
Roy Marion Jones appeals the denial of his motion for
reconsideration and leave to present new evidence. We vacate and
remand.
Jones was convicted for a 1982 conspiracy to import marijuana.
United States v. Jones, No. 91-8399 (5th Cir. March 10, 1992)
(unpublished). Jones was indicted for the conspiracy in 1983, but
was not arrested until 1990 because he was in Central and South
America under an assumed name. In affirming the conviction, this
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
court rejected Jones's assertions that he was denied a speedy
trial, that the evidence was insufficient to support his conspiracy
convictions, and that the district court abused its discretion in
sentencing him.
Jones filed a motion pursuant to Fed. R. Crim. P. 35. The
district court summarily denied the motion. This court granted
Jones's unopposed motion to remand the appeal to the district court
to allow it to consider the then-recent Supreme Court case of
Doggett v. Unites States, 505 U.S. 647 (1992). Following remand,
the district court again denied the motion. This court affirmed
the denial stating that the issues raised by Jones challenging the
validity of his conviction were not properly brought under Rule 35,
and that the district court did not abuse its discretion in
sentencing Jones to consecutive sentences. United States v. Jones,
No. 92-8411 (5th Cir. October 25, 1993) (unpublished).
On March 30, 1994, Jones filed a motion to vacate, set aside,
or correct judgment pursuant to 28 U.S.C. § 2255. In that motion
and a subsequent amendment, Jones again asserted violation of his
right to a speedy trial and an improper sentence. The magistrate
judge recommended that Jones's motion be denied because his
sentencing issue should have been brought on direct appeal and
because the speedy trial issue had been previously adjudicated.
The district court adopted the recommendation of the magistrate
judge over Jones's objection. Jones filed a timely appeal from
denial of his § 2255 motion, but that appeal was dismissed for want
of prosecution for failure to pay the docketing fee. Jones filed
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a motion to proceed in forma pauperis (IFP), but the district court
deferred ruling on the motion to this court. Jones did not file an
IFP motion with this court.
On August 2, 1995, Jones filed a motion for reconsideration
and leave to present new evidence. In addition to seeking
reconsideration on the issues that had been denied, Jones sought to
raise a new issue under Brady v. Maryland, 373 U.S. 83, 87 (1963).
Jones asserted that the prosecution did not disclose that a key
witness for the prosecution, Robert Nestoroff, had been under
investigation for conspiracy to obstruct justice and perjury with
respect to criminal investigations. See id. The government
responded urging the district court to construe the motion as a
second § 2255 motion and to notify Jones that his motion could be
dismissed under Rule 9(b). The district court denied Jones's
motion to present new evidence for reconsideration without giving
reasons or the basis of the decision. Jones timely filed a notice
of appeal from this denial. The district court granted Jones leave
to proceed IFP on appeal.
On appeal, both parties argue the merits of the issues that
Jones presented in his motion for reconsideration. Neither party
has addressed the nature of the motion to present new evidence for
reconsideration nor has the government reurged its argument that
the motion should be dismissed as abusive under Rule 9(b).
Although motions for reconsideration generally fall under the
purview of Fed. R. Civ. P. 60(b), there is "a discernable trend
among the circuits to treat motions purporting to rely on Rule
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60(b) `as the functional equivalent of a second petition for habeas
corpus.'" Williams v. Whitley, 994 F.2d 226, 230 n.2 (5th Cir.),
cert. denied, 114 S. Ct. 608 (1993) (citation omitted).
Jones's motion is particularly suited to interpretation as a
second petition under § 2255 because in addition to revisiting the
issues raised in his first § 2255 petition, it attempts to raise a
new issue. If the district court had treated Jones's motion as a
separate § 2255 motion, the motion should have been evaluated it in
accordance with Rule 9(b) of the Rules Governing § 2255
Proceedings, regarding delayed or successive motions before the
merits of his claims were addressed because it was raised in the
district court by the government. See Williams, 994 F.2d at 230
n.2. Although three of the issues raised by Jones in his motion
for reconsideration are clearly successive, his Brady issue had not
been raised before. This issue would not be found to be abusive of
the rules if Jones could show cause and prejudice under McCleskey
v. Zant, 499 U.S. 467, 489-96 (1991), for failing to raise the
issue in his first § 2255 motion. See Williams, 994 F.2d at 231.
In its response to Jones's motion, the government urged the
district court to construe the motion as a second § 2255 motion and
to notify Jones that his motion could be dismissed under Rule 9(b).
Although Jones responded to this argument by stating that he had
presented the reasons for the delay in raising the issue, he did
not restate those reasons. The possibility exists that Jones did
not know that Nestoroff, a key witness for the prosecution, had
been under investigation for conspiracy to obstruct justice and
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perjury with respect to criminal investigations until sometime
after Nestoroff was indicted for these offenses in 1994. Jones may
not have known and may not have reasonably been expected to know
about the investigation of Nestoroff until the indictment was
returned. This may be cause for not raising the claim that the
fact of investigation of Nestoroff should have been disclosed under
Brady in his original § 2255 motion. See Saahir v. Collins, 956
F.2d 115, 118-19 (5th Cir. 1992) ("the question is whether
petitioner possessed, or by reasonable means could have obtained,
a sufficient basis to allege a claim in the first petition"). The
district court did not give Jones specific notice that his motion
could be dismissed as successive. This error is not harmless
because it is not clear from the record that dismissal under Rule
9(b) would be nearly certain because Jones could not have
reasonably been expected to have known the facts underlying his
claim. See Williams, 994 F.2d at 230 n.2.
This court cannot dismiss the motion as successive because the
district court did not give Jones notice that his motion was in
danger of dismissal as successive and the failure to give that
notice was not harmless error. See Williams, 994 F.2d at 231.
The district court's dismissal of Jones's motion for
reconsideration is vacated and the case is remanded to the district
court with instructions to construe the motion as a second motion
under § 2255 and to review it as such under Rule 9(b) of the Rules
Governing § 2255 Proceedings.
VACATED and REMANDED.
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