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