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.
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.
Furthermore, Petitioner's Rule 60(b) motion is nothing more than an end
run around the second or successive filing prohibition imposed by the
Antiterrorism and Effective Death Penalty Act of 1996. As
Petitioner acknowledges, he filed a § 2255 petition on January 31,
1996, which the Court denied in an Order entered February 14, 1996.
Pursuant to the Antiterrorism and Effective Death Penalty Act, a
would-be petitioner must seek and obtain certification from the United
States Court of Appeals for the Seventh Circuit prior to filing a second
or successive § 2255 petition. "A district court must dismiss
a second or successive petition, without awaiting any response from the
government, unless the court of appeals has given approval for its
filing. . . . A second or successive collateral attack may no more
begin in the district court than a criminal prosecution may commence
in the court of appeals." Nunez v. United States, 96 F.3d 990, 991
(7th Cir. 1996) (emphasis in original).
Although Petitioner entitles his motion as one brought pursuant to
Rule 60(b), it is nothing more than a second or successive § 2255
petition. As the Seventh Circuit has explained:
Just as a second filing may be treated as an initial
motion when the first was not eligible for decision on
the merits, so additional filings in the first
collateral attack may be treated as "second or
successive" petitions when the first has reached a
final decision. Suppose a collateral attack has been
fully adjudicated, a final judgment has been entered,
and the time for appeal has expired. The prisoner then
files a motion under Fed.R.Civ.P. 60(b) advancing new
theories of relief. Such a maneuver is a transparent
attempt to avoid the need for prior appellate approval
of a second collateral attack, and we concluded in
Burns v. Parke, 130 F.3d 782, 783 (7th Cir. 1997),
that it must be seen for what it is and dismissed by
the district judge. . . . Section 2255 ¶ 8 speaks
of a second or successive "motion," and § 2244(b)
of a second or successive "application"; both a motion
under Rule 60(b) and a motion to recall the mandate
can fit this description — and must, if these
statutes are to limit multiple efforts to obtain
collateral review. . . . Thus a post-finality motion
under Rule 60(b), or a post-finality request to recall
the mandate, produces a second countable motion.
Johnson v. United States, 196 F.3d 802, 805 (7th Cir. 1999). Because
Petitioner has not obtained certification from the Seventh Circuit
allowing him to file this motion, the Court must dismiss it.
Petitioner's reliance upon the United States Supreme Court's holding in
Apprendi does not change the outcome of his motion. The Seventh Circuit
has made clear that Apprendi does not constitute a right newly recognized
and made retroactively applicable to cases on collateral review by the
Supreme Court. See Talbott v. State of Indiana, 226 F.3d 866, 869 (7th
Cir. 2000) (holding that Apprendi does not apply retroactively because
the Supreme Court did not explicitly state that it did); see Hernandez
v. United States, 226 F.3d 839, 841 (7th Cir. 2000 (same); see
Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir. 2000) (holding
that "it is clear that the Supreme Court has not made the [Apprendi] rule
retroactive to cases on collateral review."); see also In re Vial,
115 F.3d 1192, 1197 (4th Cir. 1997) (holding that "a new rule of
constitutional law has been `made retroactive to cases on collateral
review by the Supreme Court' within the meaning of § 2255 only when
the Supreme Court declares the collateral availability of the rule in
question, either by explicitly so stating or by applying the rule in a
collateral proceeding."); but see United States v. Murphy,
109 F. Supp.2d 1059, 1064 (D. Minn. 2000) (concluding "that the
Apprendi decision falls under the second exception to the Teague
nonretroactivity principle and must be applied to this section 2255
motion."). Accordingly, Petitioner's reliance upon Apprendi does
not save his motion from dismissal.
Finally, the Court finds no reason for it to recuse itself from this
matter. Although Petitioner does not specify under which statutory
provision he is asserting
that the Court should recuse itself, his failure to do so is of no
consequence because his claim is insufficient under either recusal
Title 28 U.S.C. § 455(a) requires a judge to recuse himself when
his presiding over a case would create the appearance of bias. United
States v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989). Here, the Court
has thoroughly reviewed the trial record for any alleged appearance of
bias and/or prejudice against Petitioner and can find none.
Title 28 U.S.C. § 144 requires a judge to recuse himself when a
party makes a claim of actual bias or prejudice against one of the parties.
Here, the Court in no way held or now holds any bias or prejudice
against Petitioner. For a judge to be required to recuse himself due to
actual bias, the bias "must stem from an extrajudicial source." Liteky v.
United States, 510 U.S. 540, 544 (1994), quoting United States v.
Grinnell Corp., 384 U.S. 563, 583 (1966); Troxell, 887 F.2d at 834.
The Court had no knowledge of Petitioner or his dealings other than
that which was revealed in the Court's file and that which was disclosed
within the four walls of the courtroom at his change of plea hearing and
at his sentencing hearing. Accordingly, the Court finds that Petitioner
has failed to show any reason why this Court should recuse itself from
considering the instant petition because none exists.
Ergo, Petitioner's Rule 60(b) Motion is DENIED.