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ROLLEN v. U.S.

December 29, 2000

FRANK L. ROLLEN, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Richard Mills, United States District Judge.

OPINION

Petitioner seeks relief, pursuant to Federal Rule of Civil Procedure 60(b), Relief from Judgment or Order, from the Court's denial of his § 2255 petition.

However, Petitioner's Rule 60(b) motion is untimely and is nothing more than a transparent attempt to avoid the requirement that he first seek the approval of the United States Court of Appeals before filing a second collateral attack.

Motion denied.

I. BACKGROUND

On July 29, 1993, Petitioner pleaded guilty to two counts of distribution of crack cocaine in violation of 21 U.S.C. § 841 and to one count of using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). On August 22, 1994, the Court sentenced Petitioner to 168 months of imprisonment. Specifically, the Court sentenced Petitioner to 108 months on each of his two drug convictions, to run concurrently, and sentenced him to 60 months on his firearm conviction, to run consecutively to his 108 month sentence on his two drug convictions. Petitioner did not appeal either his convictions or his sentence.

On January 31, 1996, Petitioner filed a petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Therein, Petitioner asserted that he was entitled to relief from his convictions and sentence because he received ineffective assistance of counsel, because his plea of guilty was invalid because he was incompetent, illiterate, and did not understand the proceedings, because he was selectively prosecuted, because of the wide disparity in the United States Sentencing Guideline's treatment of crack versus powder cocaine, because the Court incorrectly assigned him one additional criminal history point for a conviction for which he was not represented by counsel, and because of the United States Supreme Court's holding in Bailey v. United States, 516 U.S. 137 (1995). On February 14, 1996, the Court denied Petitioner's § 2255 petition in toto.

Petitioner has now filed a motion, pursuant to Federal Rule of Civil Procedure 60(b)(2), (4), (5), and (6), seeking relief from the Court's denial of his § 2255 petition. Therein, Petitioner asserts that he is entitled to relief because the Court never ruled upon his Rule 59 motion*fn1, because the Court erred, as a matter of law, in denying his § 2255 petition for the reasons previously given (and repeated in the instant motion), and because the Court erred, as a matter of law, in denying his § 2255 petition in light of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Finally, Petitioner asks the Court to recuse itself.

II. ANALYSIS

Initially, the Court notes that it did not deny Petitioner any of his constitutional rights in failing to rule upon his Rule 59 motion because the Court never received his Rule 59 motion. Logic dictates that the Court cannot rule upon a motion which it never receives. See Brown v. Selsky, 1997 WL 289162, *8 (N.D.N.Y. May 30, 1997) (noting that "[t]he Court never received a motion for sanctions from plaintiff, and in so far as the Court has never received this motion, it cannot rule upon it."). The Court has verified with the Clerk of the Court that Petitioner's Rule 59 motion was never received, nor was it ever docketed in either his criminal case or in the instant case. See Fed. R. Crim. Pro. 36 (providing that "errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.").

Two points are worth mentioning on this issue. First, Petitioner did not attach a copy of his Rule 59 motion to the instant motion. Thus, the Court cannot determine (assuming it would consider it) whether his Rule 59 motion had any merit. Second, Petitioner has waited almost five years to bring this matter to the Court's attention. Therefore, the Court cannot be held responsible for the delay in resolving any issue(s) which Petitioner wanted to bring to the Court's attention. See Adams v. Heckler, 794 F.2d 303, 308 (7th Cir. 1986) (noting that given his inaction, "Plaintiff has no one to blame but himself for not receiving a fuller appellate review.").

As for Petitioner's instant Rule 60(b) motion, it is untimely. Petitioner has filed his motion pursuant to subsections (2), (4), (5), and (6) of Rule 60(b). Motions filed pursuant to subsection (2) must be filed within one year after the judgment, order, or proceeding being challenged was entered or taken. Id. Petitioner's motion, which was filed on December 22, 2000, is well outside of this one year time limit as he is challenging the Court's February 14, 1996 Order.

Motions filed pursuant to subsections (4), (5), and (6) of Rule 60(b) must be filed within "a reasonable time." Id. The Court believes that Petitioner's delay of nearly five years before he filed his Rule 60(b) motion is beyond the pale of reasonableness. See United States v. Deutsch, 981 F.2d 299, 302 (7th Cir. 1992) (holding that a delay of two years was unreasonable); see also In the Matter of Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 974 F.2d 775, 787-88 (7th Cir. 1992) (holding that a delay of four years was unreasonable). Accordingly, Petitioner's Rule 60(b) motion is untimely.


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