The opinion of the court was delivered by: Gilbert, District Judge
Before the Court is defendant's motion to vacate and reopen the denial of his § 2255 motion under Federal Rule of Civil Procedure 60(b) (Doc. 906). Plaintiff has filed a response, (Doc. 915), and defendant has filed a reply (Doc. 917).
Defendant was convicted of being a principal administrator of a Continuing Criminal Enterprise, (CCE), in violation of 21 U.S.C. § 848, (Count 1), of Conspiracy to Distribute marijuana in violation of 21 U.S.C. § 841(a)(1), (Count 2), and of Conspiring to Defraud the United States in violation of 18 U.S.C. § 371, (Count 3) by impeding the United States in its assessment and collection of revenue. In a separate forfeiture count, the jury found that defendant should forfeit $60,000,000. On Count 1, (CCE), he was sentenced to life imprisonment, on Count 2, (Conspiracy), he was sentenced to 40 years to run concurrently with his life sentence, and on Count 3, (Conspiracy), he was sentenced to 5 years to run consecutively to his 40-year sentence but concurrently with his life sentence.
Defendant appealed, and his convictions were affirmed on January 30, 1992. United States v. Kramer, et al., 955 F.2d 479 (7th Cir. 1992). He then filed a petition for a writ of certiorari to the United States Supreme Court which was denied on November 30, 1992. Kramer v. United States, 113 S.Ct. 595 (1992).
On February 20, 1996, defendant filed a 28 U.S.C. § 2255 motion. He later filed a supplement to his motion claiming that the district court erred by failing to instruct the jury that it must unanimously agree on which underlying crimes constituted the "continuing series" necessary for a CCE conviction.
Shortly thereafter, on March 27, 1996, the United States Supreme Court decided Rutledge v. United States, 517 U.S. 292 (1996). Rutledge held that a conspiracy is a lesser included offense of every CCE, and that a conviction on both charges for the same conduct cannot stand. As such, on March 5, 1998, the Court partially granted defendant's § 2255 motion by vacating the conspiracy conviction in light of Rutledge, but making it subject to reinstatement if the CCE conviction was ever overturned. Defendant's CCE conviction and life sentence remained, and defendant's § 2255 motion was denied on all other grounds. With regard to the unanimity argument, the § 2255 motion was denied because defendant had already raised the unanimity claim on direct appeal, and could not raise it again absent a showing of changed circumstances.
Defendant appealed the denial of his § 2255 motion. On June 1, 1999, the United States Supreme Court decided Richardson v. United States, 526 U.S. 813 (1999). Richardson held that a jury must agree unanimously on which specific predicate acts constitute the "continuing series" of violations for a CCE conviction. Thus, defendant appealed the denial of his § 2255 and requested review of his claims based on the newly decided Richardson.
On February 9, 2000, the United States Court of Appeals for the Seventh Circuit affirmed the denial of the § 2255 motion. Specifically, the Seventh Circuit affirmed the district court's decision to vacate the conspiracy conviction based on Rutledge since it was a lesser included offense of the CCE. The Seventh Circuit also denied the Richardson claim. Specifically, the Seventh Circuit found that the district court's failure to give a unanimity instruction violated Richardson, but it was not a structural error, thus, it was subject to harmless error analysis.
On March 24, 2000, defendant filed a petition for rehearing. On June 12, 2000, the Seventh Circuit denied the petition for rehearing but amended its original opinion to include additional bases for finding that the district court's failure to give a unanimity instruction was harmless error. The Seventh Circuit found that, "In light of the overwhelming evidence against Lanier and the fact that he did not contest his involvement in the drug-dealing operation, combined with the jury's forfeiture judgments, the jury necessarily agreed upon the violations making up the continuing series." United States v. Lanier, 220 F.3d 833, 840 (7th Cir. 2000).
Six years later, on January 12, 2006, defendant filed a motion for writ of error coram nobis (Doc. 884). Again, defendant asserted his Richardson unanimity claim, but this time it was based on United States v. Booker, 534 U.S. 220 (2005). Specifically, defendant claimed that his CCE conviction must be vacated because Booker requires unanimity, beyond a reasonable doubt, by jurors as to each of the violations making up the series that established the CCE. On Novembver 15, 2006, the writ of error coram nobis was denied because Booker does not apply to appeals that were final before January 12, 2005, (Booker's effective date). The motion for the writ was also denied because it was a successive § 2255 motion for which defendant had not first obtained a certificate of appealability. Finally, the motion for writ was denied because such a writ only applies to persons no longer in custody, and thus, is not available to defendant. (Doc. 892).*fn1
Defendant now seeks to reopen his § 2255 motion. This motion is discussed below.
Defendant seeks to vacate and reopen the ruling on his previous § 2255 motion under Federal Rule of Civil Procedure 60(b)(6). Rule 60(b)(6) allows a party to seek relief from a judgment for "any other reason justifying relief from the operation of the judgment." Fed.R Civ.Proc. 60(b). Although Rule 60(b) allows a party to seek relief from a final judgment in a habeas corpus case, Rule 60(b) cannot be used to raise claims that should otherwise be raised as a second or successive habeas corpus ...