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Banks v. United States

April 14, 2010

ROBERT R. BANKS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Petitioner Robert R. Banks' Motion to Alter Judgment (Cv. Doc. 30). The United States of America did not file a response. For the following reasons, the Court DENIES Banks' Motion (Cv. Doc. 30).

BACKGROUND

I. Standard for Reconsideration

It is well settled that Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional circumstances. McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000) (citing Dickerson v. Board of Educ., 32 F.3d 1114, 1116 (7th Cir. 1994)). Rule 60(b) allows a court "to address mistakes attributable to special circumstances and not merely to erroneous applications of law." Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). A motion filed pursuant to 60(b) is not an appropriate vehicle for addressing simple legal error, for rehashing old arguments, or for presenting arguments that should have been raised before the court made its decision. Russell, 51 F.3d at 749; Rutledge v. United States, 230 F.3d 1041, 1052 (7th Cir. 2000); Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill. 1995); In re Oil Spill by "Amoco Cadiz," 794 F. Supp. 261, 267 (N.D. Ill. 1992), aff'd, 4 F.3d 997 (7th Cir. 1993).

II. Facts

The United States filed an indictment against Banks on March 4, 2003 in the United States District Court for the Southern District of Illinois. (Cr. Doc. 5, case number 03-40019). Banks was initially charged with one count of conspiracy to distribute crack cocaine and marijuana in violation of 21 U.S.C. § 846. Id. While in prison awaiting trial, Banks was assaulted and suffered from a severely broken hip. (Cr. Doc. 30, pp. 1-2). In response, on March 26, 2003, this Court ordered the U.S. Marshal's Service to immediately transport Banks to the Bureau of Prison's medical facility to receive medical treatment. (Cr. Doc. 17).

On June 8, 2004, the United States filed a superseding indictment that contained six counts of various drug offenses. (Cr. Doc. 5, ¶ 1). On November 2, 2004, the United States filed a second superceding indictment, and Banks was charged therein with conspiracy to distribute and possession with intent to distribute 50 grams or more of crack cocaine (Count 1ss), conspiracy to distribute and possession with intent to distribute cocaine (Count 2ss), conspiracy to distribute and possession with intent to distribute 50 kilograms or more of a mixture containing marijuana (Count 3ss), possession with intent to distribute and distribution of a substance containing a mixture of marijuana (Count 4ss) and possession with intent to distribute and distribution of cocaine (Counts 5ss and 6ss), all in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1), (b)(1)(C) and (b)(1)(D). Id.

On November 6, 2004, the United States filed an Information to Establish Prior Conviction. (Cr. Doc. 68). On November 8, 2004, Banks appeared and informed this Court of his intention to enter a plea of guilty to Counts 2, 4, 5 and 6. (Cr. Doc. 5, ¶ 2). In return, the United States agreed to dismiss the remaining counts. Id. Before Banks pled guilty, this Court asked Banks if it was his intent to plead guilty as his own free and voluntary act. (Cr. Doc. 117, p. 9). Banks asked this Court to repeat the question, which it did, and he then answered yes. Id. Additionally, this Court asked him if anyone was forcing him or threatening him to plead guilty, to which Banks responded no. Id. The Court reiterated both of these questions after Banks pled guilty, to which he again responded that it was his own free and voluntary act and that no one was forcing him to plead guilty. (Cr. Doc. 117, p. 14). The Court then adjudicated Banks guilty on Counts 2, 4, 5 and 6. Id.

On July 27, 2005, this Court sentenced Banks to concurrent terms of 360 months imprisonment on the three cocaine counts and 120 months on the marijuana count. (Cr. Doc. 91). He was also ordered to pay a $1,000 fine, a $400 special assessment and was given 10 years supervised release. Id.

III. Relevant Procedural Posture

Banks filed a notice of appeal on July 29, 2004. (Cr. Doc. 89). The only issue on appeal was whether this Court erred when it failed to specify the number of tests Banks was ordered to submit to during his supervised release. (Cv. Doc. 10, p. 2). On July 13, 2006, the Seventh Circuit remanded the case for the purposes of advising Banks of how many tests he would have to submit to. (Cr. Doc. 124). An amended judgment was entered on May 17, 2007 advising Banks as such. (Cr. Doc. 129).

On March 26, 2008, Banks filed a ยง 2255 habeas petition, raising the issues of whether his guilty plea was knowing and voluntary and whether his counsel was ineffective. (Cv. Doc. 5). This Court denied his petition on January 23, 2009. (Cv. Doc. 10). Banks then filed the instant motion on January 14, 2010. (Cv. Doc. 30). In it, Banks argues that ...


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