United States v. McCalister

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Pro se prisoner Defendant-Appellant Michael McCalister appealed a district court's denial of his motion to reopen his 28 U.S.C. 2255 petition under Rule 60(b) of the Federal Rules of Civil Procedure. In September 1999, Defendant was convicted of conspiracy to possess with intent to distribute controlled substances. In 2002, he filed a petition for the writ of habeas corpus which the district court denied. In 2011, Defendant filed a motion titled: "Motion for Reconsideration of the Denial of Petitioner's Motion for Equitable Relief from Judgment of the District Court Denying Habeas Petition and Request to Reopen [Section] 2255 Pursuant to Rule 60(b)(4) & (d)(1) of the Fed. R. Civ. Pro. and the Supreme Court Rule Announced in 'Gonzales v. Crosby.'" This too was denied, the district court recharacterizing Defendant's "motion" as a second or unauthorized successive petition for post conviction relief. The Tenth Circuit agreed with the district court's recharacterization, denied his appeal and dismissed Defendant's appeal.