Petition for Writ of Certiorari — Akeem R. Gumbs, Petitioner v. United States

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-3455

UNITED STATES OF AMERICA

v.

AKEEM R. GUMBS,

Appellant

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On Appeal from the United States District Court

for the District Court of the Virgin Islands

(No! 3-1 l-cr-00021-001)

District Judge: Honorable Robert A. Molloy

PETITION FOR REHEARING

BEFORE: CHAGARES, ChiefJudge, and JORDAN, HARDIMAN, SHWARTZ,

KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN,

MONTGOMERY-REEVES, CHUNG, and ‘GREENAWAY, JR., Circuit Judges

The petition for rehearing filed by appellant Akeem Gunibs in the above-captioned

matter has been submitted to the judges who participated in the decision of this Court and

to all other available circuit judges of the Court in regular active service. No judge who

* The Honorable Joseph A. Greenaway, Jr. was a member of the merits panel. Judge

Greenaway retired from the Court on June 15, 2023 and did not participate in the

consideration of the petition for rehearing.

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concurred in the decision asked for rehearing, and a majority of the circuit judges of the

Court in regular active service who are not disqualified did not vote for rehearing by the

Court en banc. It is now hereby ORDERED that the petition is DENIED.

BY THE COURT

/s/ Paul B. Matey

Circuit Judge

Dated: June 30, 2023

Everard E. Potter, Esq.

CJG/cc:

Akeem Gumbs

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* AMENDED CLD-112

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

C.A. No. 22-3455

UNITED STATES OF AMERICA

VS.

AKEEM R. GUMBS, Appellant

(D.V.I. Crim. No. 3:11 -cr-00021 -001)

Present:

GREENAWAY, JR., MATEY, and FREEMAN, Circuit Judges

Submitted:

(continued)

(1)

By the Clerk, for possible dismissal due to a jurisdictional defect, for

a decision on the issuance of a certificate of appealability (“COA”),

and for possible summary action pursuant to Third Circuit L.A.R.

27.4 and I.O.P. 10.6;

(2)

Appellant’s notice of appeal, which may be construed as a request

for a COA under 28 U.S.C. § 2253(c)(1);

(3)

Appellant’s document, received on February 3, 2023, in support of

his request for a COA;

(4)

Appellant’s motion for appointment of counsel;

(5)

Appellant’s motion to stay this appeal;

(6)

Appellant’s response to the Clerk’s letter listing this appeal for

possible dismissal due to a jurisdictional defect, for a decision on the

issuance of a COA, and for possible summary action;

(7)

Appellant’s document, received on March 22, 2023, in support of his

request for a COA; and

I' ■’

RE:

United States v. Gumbs

C.A. No. 22-3455

Page 2

*(8)

Appellant’s document, received on April 24,2023, in support of

his request for a COA

in the above-captioned case.

Respectfully,

Clerk

ORDER

This appeal challenges the District Court’s December 14, 2022 order, which

denied dozens of post-judgment motions filed by Appellant and directed him to show

cause why a filing injunction should not be imposed against him. To the extent that this

appeal challenges the show-cause directive, that part of the appeal is dismissed for lack of

jurisdiction, for the show-cause directive is not a “final” decision under 28 U.S.C. § 1291

or otherwise immediately appealable. But the non-finality of the show-cause directive

does not render non-final the remainder of the District Court’s December 14, 2022 order.

See Budinich v. Becton Dickinson & Co.. 486 U.S. 196, 199(1988). To the extent that a

certificate of appealability (“COA”) is required to proceed with a challenge to the

remainder of the District Court’s December 14, 2022 order, we deny a COA because, for

substantially the reasons provided by the District Court in its opinion accompanying that

order, reasonable jurists would not debate the District Court’s denial of Appellant’s

motions. See Slack v. McDaniel. 529 U.S. 473, 484 (2000). To the extent that a COA is

not required here, we summarily affirm the District Court’s judgment for substantially the

reasons provided in its opinion. See 3d Cir. I.O.P. 10.6. Appellant’s motions to appoint

counsel and stay this appeal are denied. Nothing in this order prevents Appellant from

challenging the District Court’s show-cause directive in his appeal docketed at C.A. No.

23-1309. At this time, we take no position on the merits of such a challenge.

By the Court,

s/Joseph A. Greenaway, Jr.

Circuit Judge

Dated: June 1, 2023

Everard E. Potter, Esq.

Akeem R. Gumbs

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Case: 3:ll-cr-00021-RAM-RM Document #: 444 Filed: 12/14/22 Page 1 of 19

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN

UNITED STATES OF AMERICA,

Plaintiff,

v.

AKEEM GUMBS,

Defendant.

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Case No. 3:ll-cr-0021

Appearances:

Everard E. Potter, Esq.

Office of United States Attorney

St. Thomas, USVI

For Plaintiff the United States ofAmerica,

Akeem R. Gumbs, Pro Se

Federal Correctional Institution

Fort Dix, NJ

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MEMORANDUM OPINION

MOLLOY, Chief Judge.

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BEFORE THE COURT is Defendant Akeem Gumbs' ("Gumbs"] sixty-three post-

conviction and section 2255 motions filed from September 12, 2018, to January 4, 2021.1 For

the reasons stated below, the Court will grant Gumbs' motions to withdraw, and will deny or

find moot the remaining fifty-seven motions as they are either frivolous and without merit,

construed as second or successive 2255 motions, or have been rendered moot by this

Memorandum Opinion.

I.

FACTUAL AND PROCEDURAL HISTORY

The investigation into the underlying criminal matter at issue began on or about

March 11, 2011, when a computer service technician contacted the Virgin Island Police

Department ("VIPD”) regarding a video and video clips of child pornography while repairing

a client’s computer. See ECF No. 7. The technician burned a copy of the video and video clips

1 See ECF Nos. 261, 264, 290, 293, 295, 297, 299, 301, 304, 306, 308, 310, 312, 321, 323, 325, 326, 328, 330,

333, 340, 342, 344, 345, 347, 351, 353, 357, 360, 362, 364, 366, 368, 369, 371, 377, 379, 381, 383, 384, 386,

388, 390, 392, 394, 396, 398, 401, 403, 404, 406, 408, 410, 411, 412, 414, 416, 418, 419, 421, 423, 425, 428.

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United States v. Gumbs

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Memorandum Opinion

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onto a DVD and turned it into the VIPD. Id. Through subsequent investigation, local police

learned the identity of the minor child in the video, and her brother, who later confirmed

that the adult appearing in the video was the defendant Akeem Gumbs. (ECF No. 7-1 at 15.)

After identifying Gumbs as the individual in the video, VIPD conducted a search of

Gumbs’ residence, pursuant to a valid search warrant, on March 19, 2011. See 3-11-mj00031-001 ECF No. 13. During the search, the agents seized: [1] a Dell laptop model #610;

(2) a black Dane-Elec 8gb thumb drive ("black thumb drive"); (3) a SanDisk adapter; (4) an

express mail receipt #513139829; (5) two VHS cassette tapes; (6) a blue jump drive; (7) a

cd; (8) PC tools notepad; and a DVD. Id.

On March 21, 2011, a Complaint was filed against Gumbs alleging that on or about

April 2010, he "sexually exploited] a minor while making a visual production of such

incident" in violation of Title 18, United States Code, Section 2251(a). See id. at ECF No. 1.

Gumbs was then arrested and referred to the Magistrate Judge for his initial appearance and

a detention hearing in a proceeding docketed at Crim. No. 3-1 l-mj-00031-001. Id. at ECF Nos.

6 & 7.

On June 2, 2011, Gumbs was subsequently charged by Indictment with five counts of

production of child pornography, one count of possession of child pornography, and twentyfive counts of aggravated rape in the first degree. See 3:ll-cr-00021, ECF No. 1. On February

14, 2012, a jury found Gumbs guilty on twenty-eight of the thirty-one counts.2 (ECF No. 64.)

A sentencing hearing was held on September 6, 2012. (ECF No. 94.) The Court sentenced

Gumbs to a term of 420 months for the child pornography charges and a term of 20 years for

the aggravated rape charges. See id. The Court ordered the terms to be served concurrently.

Id. Gumbs filed a notice of appeal on September 14, 2012. (ECF No. 95.) While his appeal was

still pending, Gumbs also filed a motion to vacate under 28 U.S.C § 2255. (ECF No. 107.)

Gumbs’ first section 2255 motion was dismissed as prematurely filed on January 11, 2013.

(ECF No. 109.) Shortly thereafter, on March 28, 2014, the Third Circuit affirmed the district

court’s judgment on direct review. (ECF No. 110-1.) Gumbs then petitioned the Supreme

2 The Court granted Gumbs' motion for a judgment of acquittal as to three counts of aggravated rape.

a

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Court of the United States for a writ of certiorari. The Supreme Court denied Gumbs's petition

on October 6, 2014. See Gumbs v. United States, 574 U.S. 884 (2014).

Once Gumbs had fully exhausted direct review, he filed a timely motion in this Court

to vacate his sentence under section 2255 on January 15, 2015. (ECF No. 112.) Finding no

merit to the claims in the original motion or Gumbs' six amendments, the Court entered an

order denying Gumbs's second motion to vacate on February 18, 2017.3 (ECF No. 186.) The

Court also declined to issue Gumbs a certificate of appealability. See id. Gumbs subsequently

appealed the Court’s order denying his section 2255 motion on the merits. On June 26, 2017,

the Third Circuit denied Gumbs' request for a certificate of appealability, explaining that

"jurists of reason would not debate that the claims advanced in Gumbs's 28 U.S.C. § 2255

motion are meritless.” See United States v. Gumbs, C.A. No. 17-1608 (3d Cir. 2017). Gumbs

then proceeded to again file a petition for writ of certiorari with the Supreme Court on July

27,2017. The petition was denied on November 6,2017. See Gumbs. v. United States, 138 S.Ct.

432 (2017).

Not to be deterred, Gumbs' proceeded to file seventeen additional motions in the

District Court seeking to vacate his convictions and sentence.4 Because each of Gumbs’

various filings asked the Court to vacate his convictions and sentence, the Court construed

these various filings as motions to vacate pursuant to 28 U.S.C. § 2255 and thus concluded

that these filings were second or successive section 2255 motions. (ECF No. 283.) Since the

filing of a second or successive motion requires authorization from the appropriate court of

appeals, and there was no indication in the record that Gumbs obtained such authorization

from the Third Circuit, the Court denied all seventeen motions on August 22, 2019. See id.

Since the Court’s Order on August 22, 2019, Gumbs has continued to inundate the

Court with over sixty, mostly repetitious, filings. The primary focus of Gumbs filings of late

have be§n his pre-trial proceedings and the Complaint docketed in D.V.I. Crim. No. 3-11-mj00031-001. Despite the Court already denying Gumbs’ prior motions to dismiss regarding

3 This motion decided on in this order constitutes the first section 2255 motion for the purposes of the

successive section 2255 motion analysis as it was the first one decided on the merits. See Pratt v. United

States, 129 F.3d 54, 60 (1st Cir. 1997) ("a numerically second petition is not 'second or successive' if it attacks

a different criminal judgment or if the earlier petition terminated without a judgment on the merits.").

4 See ECF Nos. 204, 207, 211, 212, 214, 216, 218, 221, 223, 227, 230, 234, 236, 257, 259, 265, 268.

Case: 3:ll-cr-00021-RAM-RM Document #: 444 Filed: 12/14/22 Page 4 of 19

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this issue, Gumbs filed another motion to dismiss on April 15, 2019, and has since filed

fourteen additional amendments.5 Gumbs has also filed for preliminary injunctions,

temporary restraining orders, motions to give priority, motions to compel discovery, and

motions to terminate the employment of judge Curtis Gomez, Magistrate Judge Ruth Miller,

and Assistant U.S. Attorney Everard Potter, all in an effort to have this Court relitigate the

motion to dismiss issue.6

To avoid the procedural barriers of filing successive section 2255 motions, Gumbs

has also filed two Rule 15(c) motions in an effort to have his new claims construed as

amendments to the section 2255 motion filed on January 15, 2015. (ECF Nos. 394, 421.)

Gumbs has filed several additional pre-trial and post-trial motions as well. Specifically,

Gumbs has filed a pre-trial motion to suppress evidence, a motion for a judgment of acquittal

with no less than three amendments, as well as a motion for a new trial.7 In addition, Gumbs

has filed multiple motions for relief from judgment seeking to vacate the February 18, 2017,

and February 28, 2019 Orders.8

The final issue currently before the Court is Gumbs' motion for the return of property.

(ECF No. 261.) In that motion, Gumbs is seeking the return of "the Black Flash Drive and all

non-contraband files in that black flash drive.” See id. While all of Gumbs’ motions are merely

attempts to relitigate issues that have already been decided on the merits or are new claims

that are procedurally barred, the Court will nevertheless consider each group of motions and

amendments in turn.

II.

DICUSSION

a. Motion to Dismiss and Related Motions

5 Motion to Dismiss the Complaint & accompanying amendments. See ECF Nos. 297, 299, 304, 330, 362, 366,

384, 386, 390, 398, 404, 425, 428.

6 (Preliminary Injunction) ECF Nos. 290,293,312, 326, 369; (Temporary Restraining Order) ECF Nos. 295, 371;

(Motions to Give Priority) ECF Nos. 328, 364; (Compel Discovery) ECF Nos. 323, 360; (Terminate Employment)

ECF Nos. 345,347,351,408.

7(12(b)(3) Motion to Suppress) ECF No. 414, 423; (Extension of time to file 12(b)(3) Motion) ECF Nos. 406,

412, 416; (Motion for Judgment of Acquittal) ECF Nos. 333, 342, 368, 379; (Motion for a New Trial) ECF No.

377.

(Motions for Relief from Judgment) ECF No. 321, 340, 344, 353, 357, 381, 388, 392,403.

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To understand the arguments made in Gumbs’ motion to dismiss, it is necessary to

briefly explain once more how the legal proceedings transpired. A Complaint was filed on

March 21, 2011. Gumbs was then referred to the Magistrate Judge for an initial appearance

and detention hearing. The Complaint and those pre-trial proceedings were all docketed at

Crim No. 3:ll-mj-00031-001. However, Gumbs was subsequently indicted and convicted in

the criminal proceedings docketed at Crim No. 3:ll-cr-00021. Gumbs now argues that the

proceedings in the magistrate’s docket remain pending, and as such, he has been denied a

speedy trial, along with other constitutional rights, because the Government and the Court

have failed to bring the charge found in the Complaint to trial.9 See ECF No. 429. As a result,

Gumbs argues the Complaint and the underlying charge should be dismissed. Id. Gumbs

further asserts that the dismissal of the Complaint would invalidate the seizure of other

evidence against him and thus would require a dismissal of the counts in the Indictment as

well. Id.

As noted by the Third Circuit on multiple occasions, Gumbs' motion to dismiss

argument is "frivolous.” In re Gumbs, 726, Fed. App'x, 166, 166 (3d Cir. 2018) (when

discussing the motion to dismiss, the court determined "Gumbs’s request is frivolous’’); In re

Gumbs, 747 Fed. App’x, 916, 916 (3d Cir. 2019) (noting again that the Court had already

deemed Gumbs’ request ‘"frivolous”'). The Complaint, the initial appearance, and detention

hearing found in Crim No. 3:ll-mj-00031-001 merely reflect pre-trial proceedings, not a

criminal judicial proceeding where formal charges remain pending. See U.S. v. Alvarado, 440

F.3d 191, 200 (4th Cir. 2006) ("The filing of a federal criminal complaint does not commence

a formal prosecution”). In felony cases such as in this case, a formal charge may only be

brought by information or indictment. See 48 U.S.C. § 1614(b); see also United States v. Bostic,

545 F.3d 69, 83 (1st Cir. 2008) ("the complaint is not a 'formal charge’"). The complaint

primarily serves as a precursor to an arrest warrant in felony proceedings and does not

inform the defendant of the formal charges pending against him. See Function of the

Complaint, 1 Fed. Prac. & Proc. Crim. § 42 (5th ed.). Therefore, Gumbs has no basis for

9 Gumbs also argues that the Complaint must be dismissed because the due process and double jeopardy clause

of the 5th amendment, Rule 3 and Rule 18 of the Federal Rules of Criminal Procedure, and the Court's lack

personal jurisdiction over him all entitle him to relief. See e.g., ECF Nos. 299, 304, 330, 428.

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concluding that there is still an outstanding formal charge against him simply because the

Complaint has not been dismissed.

In any event, when a criminal complaint is superseded by an indictment, the

complaint ceases to exist. See United States v. Female Juvenile, A.F.S., 377 F.3d 27 (1st Cir.

2004] ("the original complaint was superseded by [formal charging document] filed on

March 21, 2003, and thus was no longer in existence”] (citing Wayne R. LaFave et al., 1

Criminal Procedure § 1.3(n] (2d ed.1999] (noting that "like the indictment, the information

is a charging instrument which replaces the complaint”]). Therefore, any challenge to the

Complaint filed in Gumbs’ case is foreclosed as the document no longer had any legal effect

once the indictment was filed on June 2, 2011. See United States v. Smith, No. 7:00CR00123,

2001 WL 420368, at *1 (W.D. Va. Jan 23, 2001) (grand jury indictment mooted Defendant's

motion to dismiss the complaint). Thus, not only does the Complaint lack any formal criminal

charges for the Court to dismiss, but the Complaint itself cannot be dismissed as it is no

longer in existence. As such, Gumbs' arguments regarding this issue are wholly without

merit. Consequently, because Gumbs’ motion to dismiss the Complaint and the

accompanying amendments are all patently frivolous, the motion to dismiss will be denied.10

Given that the Court has ruled on Gumbs' motion to dismiss and found the claims

frivolous, the Court accordingly finds the motions for a temporary restraining order,

preliminary injunction, motions to give priority, and motions to compel discovery, all moot.11

Each of these motions sought in one way or another to either order the Court or the

Government to bring the charge in the Complaint to trial, or force the Court to dismiss the

Complaint. Because the Court has addressed the issue involving the Complaint, these

pending motions are now moot as there is no basis for relief.12

10 The following motions and accompanying amendments are denied: ECF Nos. 297, 299, 304, 306, 330, 362,

366,384,386,390,398,404,425,428.

11 The following motions are moot: ECF Nos. 290, 293, 295, 312, 323, 326, 328, 360, 364, 369, 371.

12 The Court will also deny the motion to change counsel, ECF No. 396, given that there is no criminal proceeding

currently pending and the claim at issue is frivolous. See Christenson v. Ault, 598 F.3d 990,995 (8th Cir. 2010)

[there is no federal constitutional right to counsel during post-conviction proceedings.); see also Abdullah v.

Norris, 18 F.3d 571, 573 [8th Cir. 1994) [a court should only provide counsel to a pro se defendant seeking

post-conviction relief if the claims are not frivolous).

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b. Motions to Terminate Employment

In addition to the motions mentioned above, Gumbs also filed several motions to

terminate the employment of Judge Curtis Gomez, Magistrate Judge Ruth Miller, and

Assistant United States Attorney Everard Potter in an effort to have the Court adjudicate the

frivolous claims in Gumbs' motions to dismiss. (ECF Nos. 347, 351, 408.]13 These motions to

terminate employment offer no plausible claims for relief. Given that these claims are

frivolous, they warrant no more attention by this Court. See United States v. Eddings, 2:16-cr4-8, 2022 WL 900343, at *8 (W.D. Penn. Mar. 28, 2022] ("In other words, where the motion,

files and records conclusively show that the movant is not entitled to relief, courts maintain

the discretion to summarily dismiss a § 2255 motion”] (citing United States v. Nahodil, 36

F.3d 323, 326 (3d Cir. 1994]; United States v. Lively, 817 F. Supp. 453, 457 (D. Del. 1993] (a

motion will be summarily denied "if the movant's allegations, viewed against the record,

either do not state a claim for relief or are so palpably incredible or patently frivolous as to

warrant summary dismissal.”] (citation omitted]. As such, the Court will summarily deny all

three motions. (ECF Nos. 347, 351, 408.]

c. Motion for Relief from Judgment—Rule 60(b)

The next issue is Gumbs’ motion for relief from judgment. Pursuant to Federal Rule of

Civil Procedure 60(b](4], Gumbs seeks to vacate the Order from February 28, 2019, because

he argues that the Court misconstrued his motion to dismiss as a second section 2255 motion

and thus impermissibly failed to review the claims on the merits. (ECF Nos. 321, 340, 344,

353,357,388.]

Federal Rule of Civil Procedure 60(b] entitles a moving party to relief from a

judgment on several grounds. Rule 60(b](4] specifically provides relief for when the

judgment is void. See Fed. R. Civ. P. 60(b](4). While Rule 60(b] provides post-conviction

remedies, a motion pursuant to Rule 60(b] must be filed "within a reasonable time.” Fed. R,

Civ. P. 60(c](l]; see Moolenaar v. Gov’t of Virgin Islands, 822 F.2d 1342,1348 (3d Cir. 1987]

(concluding that a Rule 60(b] motion, filed almost two years after an initial judgment, was

13 Gumbs also filed an earlier motion to terminate employment regarding Judge Gomez on February 13, 2020.

(ECF No. 345.] However, that motion was withdrawn by Gumbs on November 13, 2020. (ECF No. 418.]

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not made within a reasonable time where the reason for the attack was available at the time

of the initial judgment); Burgos v. Superior Court of Pennsylvania, 355 Fed. App'x 585, 586

(3d Cir. 2009). Moreover, a motion under Rule 60(b) requires a showing of "extraordinary

circumstances," which the Supreme Court has determined “will rarely occur in the habeas

context.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).

Here, Gumbs' motions and subsequent amendments are grossly untimely given that

he was convicted over ten years ago and each one of Gumbs' claims were available to him at

the time of trial.14 Therefore, the Court finds Gumbs is barred from seeking relief under Rule

60(b) as no extraordinary circumstances have been demonstrated. However, even if

extraordinary circumstances did exist here, '"Rule 60(b) cannot be used as an independent

means to relieve a defendant of a judgment in a criminal case."' United States v. Hernandez,

No. 90-315-2, 2013 WL 1628228, at *3 (E.D. Pa. Apr. 16, 2013) (quoting Gray v. United

States, 385 F. App'x 160, 161-62 (3d Cir. 2010)). Thus, insofar as Gumbs hopes to obtain

relief from the underlying criminal judgment, Rule 60(b) is inapplicable.

Additionally, the Court will not construe the motion for relief from judgment and the

accompanying amendments as section 2255 motions because Gumbs specifically asked the

Court not to do so. See e.g., ECF No. 321. However, even if the motions were to be construed

as section 2255 motions, the motions would constitute successive section 2255 motions

given that the Court has already decided one of Gumbs' section 2255 motions on the merits.

See ECF No. 186. In order to file a second or successive section 2255 motion, the motion must

first be authorized by the Third Circuit. See 28 U.S.C. § 2255(h). Since there is no indication

in the record that Gumbs' obtained approval to file a successive section 2255 motion, this

Court may not review these motions pursuant to section 2255. See Gove v. United States, Crim.

A. No. 90-304, 2009 WL 512160 at *6 (D.N.J Feb. 27, 2009) ("Because Petitioner has not

14 The claims are as follows (1) no evidence proves the date of the crimes of production of child pornography

on the blue flash drive; [2) no evidence to support that he possessed the blue flash drive or that the blue flash

drive contained the five videos; (3) No evidence proves the date of the crimes as to count 7-31; (4) No evidence

proves where the crimes for counts 7-31 occurred; [5] no evidence to prove that the sexual acts of those counts

were genital, oral or any other type of sexual act; (6) no evidence at trial that he committed counts 7-31. See

e.g., ECF No. 368.

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obtained certification from the Third Circuit to file a second or successive 2255 petition, the

Court lacks jurisdiction to consider the Petition."].

Consequently, there is no relief available to Gumbs pursuant to these claims either.

Therefore, the Court will deny the motions pursuant to Rule 60(b) and their accompanying

amendments.15

d. Relation Back Amendment—Rule 15(c)

In an attempt to keep the litigation alive, Gumbs also seeks to rely on Rule 15(c) to

raise new issues previously unaddressed by the Court. See ECF Nos. 394 and 421. Generally,

in order to raise a claim under 28 U.S.C. § 2255, the Defendant must file his claim and any

amendments within one year of one of four dates—whichever is the latest.16 See 28 U.S.C. §

2255(f). For the purposes of this claim, the relevant date is the date the conviction became

final. Gumbs' conviction became final in 2014. See Gumbs v. United States, 574 U.S. 884

(2014). Therefore, amendments such as Gumbs', that were filed in 2020 are generally

procedurally barred. See ECF Nos. 394 and 421. Nevertheless, there is an exception for

untimely amendments that relate back to a timely filed motion.

Under Rule 15(c) ("Relation Back Amendment”), "[a]n amendment to a pleading

relates back to the date of the original pleading when ... the amendment asserts a claim or

defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be

set out—in the original pleading." Fed. R. Civ. P. 15; see also Mayle v. Felix, 545 U.S. 644, 664

(2005) ("So long as the original and amended petitions state claims that are tied to a common

core of operative facts, relation back will be in order.”). The Third Circuit has established that

the relation back rule under Rule 15(c) also applies to timely filed section 2255 motions

despite the fact that section 2255 motions are filed in criminal proceedings. See United States

v. Thomas, 221 F.3d 430, 431 (3d Cir. 2000); United States v. Duffus, 174 F.3d 333, 336 (3d

15 The following motions and amendments are denied: ECF Nos. 321, 340, 344, 353, 357, 388.

16 Under § 2255(f) ''[t]he limitation period shall run from the latest of... (1) the date on which the judgment of

conviction becomes final; (2) the date on which the impediment to making a motion created by governmental

action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from

making a motion by such governmental action; (3) the date on which the right asserted was initially recognized

by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims

presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f).

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Cir. 1999). However, an amendment which raises new claims will not relate back to the date

of the original timely filed section 2255 motion when it is '"supported by facts that differ in

both time and type from those the original pleading set forth.’” Hodge v. U.S., 554 F.3d 372,

378 [3d Cir. 2009) (quoting Mayle, 545 U.S. at 650).

Here, Gumbs first argues that ground one in his Rule 15(c) motion relates back to

ground three in his original section 2255 motion. See ECF Nos. 394 and 421. Although the

grounds appear to be seemingly related, as both grounds involve the use of the warrant,

Gumbs seeks to lay out an entirely new argument that differs in time and type from the

claims in ground three of his original motion.

Ground three of the original section 2255 motion argued that the blue flash drive and

the five images of child pornography must be suppressed because they were obtained

pursuant to Attachment A of the search warrant. See e.g,, ECF No. 112. Gumbs argued that

Attachment A violated the probable cause requirement of the Fourth Amendment. See id.

Specifically, Gumbs argued that Attachment A impermissibly relied on Gumbs’ driver license

to determine where he resided. See id. Since he could have theoretically resided somewhere

other than where his driver’s license stated, Gumbs reasoned that there was insufficient

probable cause to conclude that he, in fact, resided at the place that was identified in the

search warrant. See id. In other words, in the original motion, Gumbs is challenging the basis

for the Magistrate Judge granting the search warrant in the first place. The argument found

in ground one of Gumbs' Rule 15(c) motion is a different type of claim and focuses on an

entirely different event.

The Rule 15(c) motion argues that section 1(a) (which lists the types of places and

mediums where child pornography could be found) could not be redacted from Attachment

C (which states the items to be seized) during the suppression hearing. See ECF Nos. 394 and

421. Therefore, because section 1(a) was allegedly redacted during the hearing, Gumbs

argues that Counsel was not able to demonstrate that the scope of the warrant was

impermissibly broad. See id. Additionally, Gumbs argues that his attorney's failure to raise

this argument at trial resulted in him receiving ineffective assistance of counsel. See id.

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It is indisputable that the underlying facts and argument in ground three of the

original section 2255 motion are fundamentally different in type and in time from those in

the Rule 15(c) motion. In the original section 2255 motion, Gumbs argues there was

insufficient probable cause for the Magistrate Judge to issue the warrant. See ECF No. 112. In

the Rule 15(c) motion, Gumbs challenges events that occurred during the suppression

hearing. Specifically, the alleged redaction of certain information in the warrant and his

attorney's failure to raise the argument during the proceedings. See ECF No. 394 and 421.

Gumbs thus lays out entirely new claims in ground one of his Rule 15(c) motion that involves

different facts and different event than the ones raised in his original section 2255 motion.

See Whitaker v. Superintendent Coal Township SCI, 721 Fed. App’x 196, 202 (3d Cir. 2018)

(concluding that a claim involving the trial court's admission of redacted evidence was

different in time and type than a claim involving defense counsel’s failure to challenge the

court’s decision). As such, the amended claims in ground one of the Rule 15(c) motion cannot

relate back to Gumbs' original section 2255 motion.

Gumbs also claims that grounds two through seven of his Rule 15(c) motion relate

back to ground six of his original section 2255 motion. See id. Gumbs argues that his first

section 2255 motion does not specifically mention which charging document fails to inform

him of the crimes he was charged with. Id. Therefore, Gumbs argues that grounds two

through seven may constitute amendments as they clarify and amply his claims in ground

six of his original section 2255 motion. Id. However, this argument is wholly without merit.

Ground six in the original section 2255 motion argues that Gumbs received ineffective

assistance of counsel because, at the suppression hearing, his attorney failed to argue that

the warrant lacked probable cause since it did not include a precise date for the crimes

alleged. See ECF No. 131. Grounds two through seven of Rule 15(c) are distinctively different

in time and type.

Grounds two, three, and five assert that Gumbs was not able to present a complete

defense at trial because the date on the metadata in the video evidence could theoretically

be altered meant that he could not be certain of the date the evidence was produced. (ECF

No. 394 and 421.) Therefore, Gumbs claims he was not able to argue that the evidence used

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against him at trial was produced while he was incarcerated, thus making it impossible for

him to have created the material. See id. Grounds four and six assert that Gumbs’ Sixth

Amendment right to be informed of the nature and cause of the accusation was violated

because the date of the crimes asserted in the Indictment are based, in part, on the metadata

dates found on the video evidence. Id. Since those dates could theoretically be altered, Gumbs

argues he cannot properly rely on the Indictment to be informed of the nature and cause of

the accusation against him in the Indictment. See id. Finally ground seven alleges that Gumbs’

right to be proven beyond reasonable doubt was violated because there was no evidence at

trial to prove the dates of the crimes alleged. (ECF No. 421.)

Based on these pleadings, it is self-evident that the new claims in the Rule 15(c)

motion are not related in time or type to the claims in ground six of Gumbs’ original section

2255 motion. Ground six involved a challenge to the warrant at the suppression hearing,

whereas the claims in the Rule 15(c) motion involve challenges to the Indictment and the

evidence introduced at trial. Therefore, since grounds two through seven of the Rule 15(c)

motion are demonstrably new claims involving operative facts that are different in time and

type, the Court may not construe those claims as amendments to Gumbs’ timely filed section

2255 motion. As such, Gumbs’ Rule 15(c) motion and amendment constitute successive

section 2255 motions. Because Gumbs failed to obtain authorization from the Third Circuit

to file such a motion, the claims in the motion and amendment are procedurally barred under

section 2255(h). Accordingly, the Court will deny the motions at ECF Nos. 394 and 421.

e. Motion for a New Trial—Rule 33

Gumbs’ motion for a new trial is time barred as well. (ECF No. 377.) Generally, in order

to successfully move for a new trial under Rule 33, the defendant must file a motion within

fourteen days after the verdict or finding of guilty unless the motion is based on newly

discovered evidence. See Fed. R. Crim. P. 33. Since Gumbs is not relying on any newly

discovered evidence, his motion is constrained by the fourteen-day limitation. Given that this

motion was made over ten years after his conviction, it is untimely.

While it is true there is a limited exception to the fourteen-day rule for filing a motion

for a new trial, it does not apply here. Under Federal Rule of Criminal Procedure 45(b)(1), a

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court may extend the time prescribed under Federal Rule of Criminal Procedure 33(b)(2) for

good cause and excusable neglect. See Fed. R. Crim. P. 45(b). Gumbs failed to make any

showing of good cause in his motion. Thus, good cause cannot be a basis for an extension of

time.

Additionally, the Court finds there is no excusable neglect. Excusable neglect is an

equitable consideration that requires the Court to take account of relevant circumstances,

including danger of prejudice, the length of the delay, the delay's impact on judicial

proceedings, the reason for the delay, whether the movant had control over the delay, and

whether the movant acted in good faith. See In re Cendant Corp. PRIDES Litig., 234 F.3d 166,

171 (3d Cir. 2000) (citing Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380

(1993)). None of the equitable considerations are met here. Gumbs has offered no excuse for

why he did not bring these claims sooner other than that defense counsel failed to timely

raise the claim at trial. His conviction has been final for years and defendant has raised these

underlying claims on numerous occasions without once ever filing a motion for a new trial.

In other words, Gumbs was acutely aware of any potential failing on the part of defense

counsel in not relying on these claims as grounds for a new trial. Nevertheless, Gumbs chose

not to file a motion for a new trial until now. As such, the Court finds Gumbs failure to bring

this motion sooner anything but excusable. Consequently, Gumbs’ motion for a new trial is

procedurally barred.

Moreover, the granting of a new trial is within the sound discretion of the Court.

See Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002,1017 (3d Cir. 1995). Because the Court

has already deemed Gumbs’ underlying claims meritless in the past, the Court concludes it

would be inappropriate to grant a new trial and will deny Defendant’s motion accordingly.

f. Motion for Judgment of Acquittal—Rule 29(c)

Gumbs also filed a motion for judgment of acquittal with several amendments. (ECF

Nos. 333, 342, 368, 379.) The essence of Gumbs’ argument in the motion and accompanying

amendments is that there was insufficient evidence to convict him on any of the counts in

the Indictment. See e.g., ECF No. 333. As such, Gumbs believes the Court should enter a

judgment of acquittal for all twenty-eight counts he was convicted on. See id.

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Even if there were merit to any of the claims in the motion, a motion for judgment of

acquittal is procedurally barred at this stage in the criminal proceedings. Federal Rule of

Criminal Procedure 29(c)(1) states that "a defendant may move for a judgment of acquittal,

or renew such a motion, within 14 days after a guilty verdict or after the court discharges

the jury, whichever is later.” Fed. R. Crim. P. 29(c)(1) The deadline to file a motion for

acquittal under Rule 29 is a strict deadline. See Carlisle v. United States, 517 U.S. 416, 418,

433 (1996) ("We conclude that the District Court had no authority to grant petitioner's

motion for judgment of acquittal filed one day outside the time limit prescribed

by Rule 29(c).”). The district court does not have discretion to permit the filing of delayed

rule 29 motions. See id. Therefore, because Gumbs’ claims were filed well past the fourteenday deadline, they are procedurally barred. 17

g. 12(b)(3) Motion

The next issue is Gumbs' 12(b)(3) motion and the accompanying motions and

amendments for an extension of time to file. (ECF Nos. 406, 412, 414, 416, 423.) Gumbs first

filed a pre-trial motion pursuant to Federal Rule of Criminal Procedure 12(b)(3) on

November 5, 2020, where he attempts to raise a series of claims which would require the

suppression of certain evidence used at his trial. See ECF No. 414. In the motion, and the

accompanying amendment, he acknowledges that he is making a pre-trial motion but seeks

to excuse the untimeliness by relying on the good cause exception under 12(c)(3). See ECF

Nos. 414, 416.

In order to raise a claim pursuant to Federal Rule of Criminal Procedure 12(b)(3), a

party must raise the claim by "pretrial motion if the basis for the motion is then reasonably

available and the motion can be determined without a trial on the merits.” Fed. R. Crim.

P. 12(b)(3). "If a party does not meet the deadline for making a Rule 12(b)(3) motion, the

motion is untimely. But a court may consider the defense, objection, or request if the party

shows good cause." Fed. R. Crim. P. 12(c)(3); see also United States v. Rose, 538 F.3d 175,182

(3d Cir. 2008) ("[U]nder rule 12, a suppression argument raised for the first time on appeal

is waived (i.e., completely barred) absent good cause...our holding applies not only where

17 The Court denies the following motions: ECF Nos. 333, 342, 368, 379.

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the defendant failed to file a suppression motion at all in the district court, but also where he

filed one but did not include the issues raised on appeal.”).

Here Gumbs’ motion is certainly untimely as it was filed years after his trial and there

is no suggestion that this information was not previously available. Gumbs’ only argument

that there is good cause for the delay is that his counsel failed to raise the claims asserted

prior to his trial in 2011. See ECF No. 415. The argument is unpersuasive. Since trial, Gumbs

has exhausted direct review and made no less than three section 2255 motions. In that time,

he has not once made a Rule 12(b)(3) motion. Therefore, because Gumbs offers no

explanation for his failure to raise the issue after his trial but prior to his current motion, the

Court finds there has been no good cause showing to justify the delay. See Rose, 538 F.3d at

183 (finding no good cause for defendant failing to make his 12(b) motion when he offered

no explanation for why he did not raise the issues after the suppression hearing but prior to

appeal). Accordingly, Gumbs’ 12(b)(3) motion is untimely and thus procedurally barred.

To the extent that the 12(b)(3) motion and amendments are, in reality, section 2255

motions for ineffective assistance of counsel, they are also procedurally barred as a

successive section 2255 motion because Gumbs did not receive authorization from the Third

Circuit to make a successive section 2255 filing. For these reasons, the Court will deny the

12(b)(3) motion and its amendment.18

h. Motion to return property

Finally, Gumbs' motion for the return of property is foreclosed as well. (ECF No. 261.)

The Court in a previous order had found that Gumbs' motion for the return of property was

moot because the property in question had been returned to defendant's counsel’s office on

March 21, 2012. (ECF No. 287.) Gumbs appealed the Court’s decision on April 8, 2019,

arguing that he had not received all the property seized during the search of his residence

on March 19, 2011. (ECF Nos. 303, 335.) While on appeal Gumbs filed another motion in the

district court seeking a return of property. See ECF No. 261. The Third Circuit then affirmed

the District Court’s decision finding the matter moot on December 2, 2019. (ECF No. 335.)

18 The Court will also deny the motions for extension of time to file a Rule 12(b) motion. (ECF Nos. 406, 412 and

416.) Such motions, which are filed pursuant to Rule 45(b)(1)(B), would still not permit Gumbs to file a Rule

12(b) motion because Gumbs has failed to show good cause or excusable neglect.

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Given that the Third Circuit has already affirmed this Court’s decision on the matter

and no new issues have been raised, Gumbs’ pending motion for the return of property is

moot.19 20

i. Future Filings

Although it is "established beyond doubt that prisoners have a constitutional right of

access to courts,” when litigants begin to "abuse the judicial process,” the federal courts may

protect themselves from a litigant's abusive tactics if the conduct impairs the court's ability

to carry out Article III functions. Bounds v. Smith, 430 U.S. 817, 821 (1977]; see Abdul-Akbar

v. Watson, 901 F.2d 329, 333 (3d Cir. 1990]; Procup v. Strickland, 792 F.2d 1069,1073-1074

(11th Cir. 1986]. Specifically, under the All Writs Act, 28 U.S.C. § 1651,21 the Third Circuit has

found that the district courts have the authority to issue an injunction restricting meritless

filings. See In re Oliver, 682 F.2d 443,445 (3d Cir. 1982]; Hickman v. Cameron, 531 Fed. App'x

209, 211 (3d Cir. 2013] (specifically permitting an injunction on future habeas corpus filings

and Rule 60(b] motions if defendant files without first seeking leave of court]. "The interests

of repose, finality of judgments, protection of defendants from unwarranted harassment, and

concern for maintaining order in the court's dockets” have been deemed sufficient

justifications to warrant such restrictions on repetitive litigation, and in appropriate

circumstances, new filings from a litigant. See In re Oliver, 682 F.2d at 445. While litigiousness

alone will not support an injunction against future filing, a continuous pattern of’"groundless

19 The Court will deny ECF No. 264 as it appears that the motion was improperly filed in this Court. Gumbs

sought a writ of mandamus in the Third Circuit. See ECF No. 263 (Notice of filing of Writ of Mandamus to the

Third Circuit]. ECF No. 264 appears to be a motion to proceed in forma pauperis in that proceeding.

Accordingly, the motion at ECF No. 264 is denied as it is up to the Third Cicuirt to grant such a motion. See

Dourisv. Middletown Tp., 293 Fed. App’x 130,131 (3d Cir. 2008] ("We grant Douris’ motions to proceed in forma

pauperis for the purpose of these appeals."].

20 The remaining motions, ECF Nos. 301, 308, 310, 345, 381, 383, 392, 401, and 403 are found moot given that

Gumbs withdrew those motion. See ECF Nos. 325, 410,411, 418, 419. ECF No. 383 was rendered moot because

Gumbs filed a duplicate and thus did not need a copy of the original letter. See ECF No. 383 ("I request a copy

of my amended motion...which I dated as 6/9/20 if you received or else 1 will have to file a duplicate by

9/11/20."]. The duplicate was filed on September 11, 2020. See ECF No. 390.

21 "The Supreme Court and all Courts established by Act of Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C.

§ 1651(a],

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and vexatious litigation,'” permits the court to grant an order enjoining the litigant from

making further filings without the permission of the Court. Gagliardi v. McWilliams, 834 F.2d

81, 83 (3d Cir. 1987) (quoting In re Oliver, 682 F.2d at 446}.

Given that the power of the All Writs Act is constrained by the two fundamental tenets

of our legal system—the litigant's rights to due process and access to the courts—courts

must comply with three requirements in order to issue an injunction on a litigant's filing

activities. See Pondexterv. Allegheny Cnty., No. CIV. A. 11-857, 2011 WL 5328562, at *4 (W.D.

Pa. Nov. 4,2011). First, the district court may not restrict the litigant from filing claims absent

exigent circumstances, such as a litigant's continuous abuse of the judicial process. See

Pondexter, 2011 WL 5328562, at *4; see also Crooker v. Delta Management Associates,

Inc., 2010 WL 1390868, at *4 (M.D. Pa. Apr. 1, 2010) (citing Matter of Packer Ave. Assoc., 884

F.2d 745, 747 (3d Cir. 1989)). Second, if the court finds that the circumstances warrant an

injunction on a litigant's ability to file, the court must first give notice to the litigant to show

cause why the proposed injunction should not be issued. See Gagliardi v. McWilliams, 834

F.2d 81, 83 (3d Cir. 1987) (such a sanction "should not be imposed by a court without prior

notice and some occasion to respond.”). Finally, the scope of the injunction must be narrowly

tailored so as not to impose a restriction more burdensome than necessary to prevent future

abusive litigation. See Crooker, 2010 WL 1390868, at *4 (citing Chipps v. United States Dist.

Ct. for the Middle Dist. of Pa., 882 F.2d 72, 73 (3d Cir. 1989)).

The matter before the Court constitutes exigent circumstances. Despite the Court

reiterating to Gumbs that he has exhausted all available review regarding his convictions and

sentence, he has continued to file repetitive, frivolous, meritless, and vexatious filings in both

this Court and in the Third Circuit. Not only has Gumbs made more than sixty filings since

this Court's most recent order denying more than 20 motions, Gumbs has proceeded to file

several section 1983 claims regarding this issue as well as numerous writs of mandamus in

the Third Circuit. See in re Gumbs, 747 Fed. App’x at 916. While the Court will not make such

a determination today, it appears that Gumbs insistence to refile meritless claims indicates

that he plans to continue abusing the judicial system.

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In light of the circumstances, the Court proposes issuing the following injunction on

Akeem Gumbs' future filings in the District Court of the Virgin Islands:

Defendant Akeem R. Gumbs, is hereby prohibited from filing any section 2255

motion, pretrial or post-conviction motion, habeas petition, section 1983

claim, or motion in connection therewith, relating to his 2011 criminal

conviction in the District Court of the Virgin Islands without first seeking leave

to do so. In seeking leave, Gumbs must certify that the claims he wishes to

present are not barred by the Antiterrorism and Effective Death Penalty Act’s

prohibition on successive filings; or in the case of a Federal Rule of Civil

Procedure 60(b) motion, that his motion presents new, nonfrivolous reasons

for granting relief from judgment. Upon a failure to certify or upon a false

certification, Gumbs may be found in contempt of court and punished

accordingly. Such punishment may include fines and other penalties that the

Court deems proper.

Although the Third Circuit has previously issued a warning to Gumbs regarding future

frivolous filings regarding this matter, this Court has not. See In re Gumbs, 726 Fed. App'x. at

166 ("Gumbs is warned that further frivolous filings could result in sanctions”). Therefore,

out of an abundance of caution, the Court will order Gumbs to show cause why an injunction

should not be issued in these circumstances. Such response shall be filed within thirty days

of the receipt of this Opinion.

III.

CONCLUSION

After reviewing Gumbs’ more than sixty, mostly repetitious, filings since the Court's

last Order, the Court finds that none of his claim hold any merit. All of Gumbs’ claims are

frivolous and generally fail to provide grounds for relief or are otherwise procedurally

barred. As such, all of Gumbs' motions that are not deemed moot are denied.

Additionally, the Court finds that the inundation of meritless filings highlighted in this

Memorandum Opinion demonstrates a pattern of abusive and vexatious filings by Gumbs

since his convictions and sentence became final. Therefore, the Court believes that it is

necessary for Gumbs to show cause why an injunction on future filings related to this matter

is not appropriate under these circumstances. Gumbs shall have thirty days to respond to

the Court’s proposed injunction.

An appropriate order follows.

1

»

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Date: December 14, 2022

A/ Robert A. Mollov

ROBERT A. MOLLOY

Chief Judge

i