The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
This matter is before the Court on Petitioner's Motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). (Doc. 46). For the reasons stated below, the Motion is denied.
Petitioner was convicted by a jury in this Court on August 26, 2002 of kidnapping and using and carrying a firearm during and in relation to a crime of violence. (99-cr-40019). Petitioner appealed his conviction, and the Seventh Circuit affirmed it on October 20, 2003. U.S. v. Sandoval, 347 F.3d 627 (7th Cir. 2003). On September 1, 2004, Petitioner filed a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. (Doc. 1). He filed this Motion pro se, but relied on a fellow inmate, Raphael Okoro, to help him draft the petition, as he does not read or speak English. This Motion alleged that Petitioner's trial counsel was ineffective because he failed to call alibi witnesses, that the government violated the Vienna Convention by failing to notify the Mexican Embassy of Petitioner's arrest, that Petitioner's rights to a fair trial were violated under the standard of Schlup v. Delo, 513 U.S. 298, 327 (1995), and that the prosecutor violated the Citizens Protection Act of 1998. (Docs. 1 & 2).
On October 6, 2004, the Court, sua sponte, appointed attorney Donovan Robertson to represent Petitioner, as Okoro's draft of the § 2255 Motion was inadequate. (Doc. 3). After several requests for extensions of time to amend the Motion from Robertson, the Court set a firm deadline of April 28, 2005 for the filing of Petitioner's amended Motion.*fn1 (4/21/05 Text Order). On April 28, 2005, Robertson filed the amended Motion and Memorandum under § 2255. (Docs. 13 & 14). In it, he did not add to the claims made in the original motion drafted by Okoro, and in fact asserted that most of them were baseless. Robertson asserted only a claim that Petitioner, subsequent to the initial § 2255 Motion, requested be considered: that the Court violated Blakely v. U.S. and Booker v. U.S. in increasing the sentence imposed based on factors not presented to the jury or agreed to by Petitioner.
On May 16, 2005, a Motion requesting the Court's recusal and the removal of Robertson was filed, purportedly on Petitioner's behalf. (Doc. 17). Petitioner now asserts that this motion was drafted and filed by Okoro without his knowledge or consent. (Doc. 46 at 6-7). The Court, not realizing that Petitioner did not consent to the motion, granted the request to remove Robertson, ruling that Petitioner would proceed pro se from that point on, and denied the motion for the Court's recusal. (Doc. 18). The Court also construed the request that Robertson's filing be stricken as a request for the reinstatement of the original § 2255 Motion, and so reinstated that original § 2255 Motion.
Respondent filed its response to the original Motion on September 29, 2005, and Petitioner filed his traverse on October 14, 2005. (Docs. 20 & 22). On September 25, 2007, the Court denied Petitioner's original § 2255 Motion. (Doc. 25); Sandoval v. U.S., 04-cv-4056, 2007 WL 2937124 (C.D. Ill. 2007). Petitioner appealed, and on July 31, 2009, the Court of Appeals affirmed this Court's decision; only the ineffective assistance and Vienna Convention issues were considered by the Court of Appeals. (Doc. 44); Sandoval v. U.S., 574 F.3d 847 (7th Cir. 2009).
Petitioner now attempts to challenge the Court's September 26, 2007 judgment under Rule 60(b)(6). (Doc. 46 at 1). He actually attacks the Court's June 29, 2005 Order granting the Motion to remove Robertson from the case, arguing that the Court should have held an evidentiary hearing on the Motion in order to ascertain whether Petitioner actually wished to have Robertson removed and to proceed pro se, as the Court knew that Petitioner did not speak or read English. (Doc. 46 at 6-7). He does not argue that the Court erred in its disposition of the § 2255 Motion itself, which was upheld by the Court of Appeals, but that the Court should have held an evidentiary hearing on the Motion to remove Robertson and should have appointed new counsel for him, who would have raised stronger arguments in support of the § 2255 Motion than did Okoro and Robertson. (Doc. 46 at 5).
Motions under Rule 60(b)(6) must be filed within a "reasonable time" after the challenged order or judgment. FED. R. CIV. P. 60(c)(1). "[W]hat constitutes 'reasonable time' for a filing under Rule 60(b) depends on the facts of each case." Shakman v. City of Chicago, 426 F.3d 925, 932 (7th Cir. 2005) (quoting Ingram v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7th Cir. 2004)). Although "there is no hard and fast rule as to how much time is reasonable for the filing of a Rule 60(b)(6) motion, we look at the interest in finality, the reasons for the delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and the consideration of prejudice, if any, to other parties." Ingram, 371 F.3d at 952 (quoting Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 610 (7th Cir. 1986)) (internal quotation marks omitted).
The judgment by this Court in Petitioner's case was entered September 26, 2007, two and a half years before the instant Motion was filed. (Doc. 26). Petitioner offers no explanation for the delay in his filing of the Rule 60(b)(6) Motion, but merely asserts that it is brought "within a reasonable amount of time." (Doc. 46 at 1). He does not assert that he did not know of the Court's judgment or that he was somehow precluded from filing a Rule 60(b)(6) Motion earlier; as he timely appealed from the judgment, it is apparent that he did know of it. See U.S. v. Moorehead, 321 Fed.Appx. 512, 513-514 (7th Cir. 2009) ("In the absence of any persuasive reasons for his delay, the district court did not abuse its discretion in concluding that the delay was unreasonable.") (citing Ingram, 371 F.3d at 952 (7th Cir. 2004)). Indeed, as Petitioner actually challenges the Court's handling of the Motion to remove Robertson, culminating in the June 29, 2005 Order, the timing of his Rule 60(b)(6) Motion is even more unreasonable. In 2005, Petitioner knew that the Court had removed Robertson from the case, reinstated the original § 2255 Motion, and determined that Petitioner would proceed pro se, but he did not file a motion to reconsider or set aside that decision until 2010, almost five years later.*fn2 This was not a "reasonable time" under Rule 60(c)(1), and so the Rule 60(b)(6) Motion must be denied.
In addition to being filed within a "reasonable time," "[t]he ground for setting aside a judgment under Rule 60(b) must be something that could not have been used to obtain a reversal by means of a direct appeal." Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000). "Relief under Rule 60(b)(6) requires a showing of 'extraordinary circumstances" justifying the reopening of a final judgment' and '[s]uch circumstances will rarely occur in the habeas context.'" Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006) (quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)).
Petitioner's argument presented in his Rule 60(b)(6) Motion could have been raised in his appeal, at which he was represented by counsel appointed by the Court of Appeals. If this Court's failure to hold an evidentiary hearing on the Motion to remove Robertson, or to appoint other counsel, was indeed an error that unfairly affected the disposition of the § 2255 Motion, that issue could have been grounds for reversal by the Court of Appeals.*fn3 Rather than raise this issue to the appellate court, however, Petitioner argued only the merits of his § 2255 Motion.*fn4 As he could have raised the Court's alleged error before the Court of Appeals, he is not now eligible for Rule 60(b) relief. Bell, 214 F.3d at 801.
IT IS THEREFORE ORDERED that Petitioner's Rule 60(b) Motion (Doc. 46) is DENIED.
Entered this 25th day of ...