United States v. Joshua Carrington , 508 F. App'x 331 ( 2013 )


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  •      Case: 12-10738       Document: 00512118580         Page: 1     Date Filed: 01/18/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    January 18, 2013
    No. 12-10738
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    JOSHUA LAMAR CARRINGTON,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 1:03-CR-90-1
    Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Joshua Lamar Carrington pleaded guilty to being a felon in possession of
    a firearm and received a sentence under the Armed Career Criminal Act (ACCA)
    of 235 months in prison, to be followed by a five-year term of supervised release;
    he voluntarily dismissed his appeal in 2004. In 2012, Carrington filed a motion
    pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, asserting that his
    ACCA sentence was invalid because two of his prior convictions for burglary of
    a habitation were “related cases” under U.S.S.G. § 4A1.2 and that counsel
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 12-10738     Document: 00512118580      Page: 2    Date Filed: 01/18/2013
    No. 12-10738
    rendered ineffective assistance by failing to object to the guidelines calculations.
    The district court denied Carrington’s motion, determining that a Rule 60(b)
    motion was not proper in criminal proceedings and noting that Carrington’s
    allegations were without merit. The court acknowledged that it could have
    construed Carrington’s motion as an initial 28 U.S.C. § 2255 motion, but it
    declined to do so because it determined that such a motion would be untimely.
    On appeal, Carrington argues that the district court erred by not
    construing his motion as a § 2255 motion. He maintains that he could not have
    discovered the factual predicate of his claims before August 2011 and that he did
    not have access to the Sentencing Guidelines until he was released from state
    custody to a federal prison. Additionally, Carrington asserts that he is entitled
    to relief on the merits of his allegations. After reviewing the record and
    Carrington’s arguments, we conclude that Carrington has failed to show that the
    district court abused its discretion in denying the Rule 60(b) motion. See Seven
    Elves, Inc. v. Eskenazi, 
    635 F.2d 396
    , 402 (5th Cir. 1981).           Neither has
    Carrington established any error in the district court’s decision declining to
    consider the Rule 60(b) motion as an initial 28 U.S.C. § 2255 motion.
    AFFIRMED.
    2
    

Document Info

Docket Number: 12-10738

Citation Numbers: 508 F. App'x 331

Judges: Benavides, Dennis, Jolly, Per Curiam

Filed Date: 1/18/2013

Precedential Status: Non-Precedential

Modified Date: 8/6/2023