The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on Petitioner Antonio Payton's Rule 60(b) motion for relief from judgment (Doc. 59) and Payton's pro se motion for certificate of appealability. (Doc. 60). The court entered judgment (Doc. 45) on November 8, 2007, denying the petitioner's motion under 28 U.S.C. § 2255. Three years later, the Petitioner filed this Rule 60(b) motion (Doc. 59) on September 16, 2010. Although the Court does not believe this motion was filed in a "reasonable time" as required by Federal Rules of Civil Procedure 60(c)(1), it will consider the merits of the motion.
This matter comes with a complicated procedural background. On May 21, 2001, Payton was convicted by a jury on three counts, including; conspiracy to distribute more than five grams of crack cocaine, use of a weapon during the conspiracy, and possession with intent to distribute and distribution of crack cocaine. This Court then sentenced him to 480 months in federal custody.*fn1 Payton appealed his conviction and sentence to the United States Court of Appeals for the Seventh Circuit and it was denied on May 12, 2003. U.S. v. Payton, 328 F.3d. 910 (7th Cir. 2003). The Court of Appeals addressed the sufficiency of the indictment, the sufficiency of the evidence against him, and the application at sentencing of more drugs than stated in the indictment. Id. The United States Supreme Court denied his petition for certiorari review on October 6, 2003. Payton v. U.S., 540 U.S. 881 (2003).
Payton then filed a timely motion pursuant to 28 U.S.C. § 2255 for the Court to vacate, set aside, or correct his sentence. (Doc. 1). This motion was filed pro se by Payton on June 24, 2004. On October 5, 2004, Payton's appellate counsel also filed a § 2255 motion on his behalf although it was originally filed in a separate case (4:04-cv-4205, Doc. 1). Payton then filed a prose motion to consolidate these two cases which was granted by this Court (Doc. 6) and Payton's appellate counsel continued to represent him in this matter. (Doc. 32). Payton filed an Amended § 2255 motion (Doc. 8). Following the response from the government (Doc. 31) addressing all of the pending claims in the § 2255 motions and reply from Petitioner (Doc. 42), this Court denied Payton's § 2255 motion. (Doc. 44).
Payton's pro se § 2255 motion (Doc. 1) boiled down to the following four arguments: 1.) the evidence presented at trial did not support the conviction, 2.) his counsel was ineffective for failing to seek a Rule 11 plea agreement or advise to the benefits of pleading guilty, 3.) the Court erred to issue a sua sponte Sears instruction to the jury, and 4.) the indictment was too open-ended. The § 2255 motion filed by Payton's counsel addressed two main points, 1.) trial counsel was ineffective for a number of reasons including failing to object to character evidence and failing to seek proper jury instructions, and, 2.) the sentence was imposed based upon facts not found by the jury. Payton's amended § 2255 (Doc. 8) raised additional concerns about the inadequacy of his trial counsel.
Counsel's reply (Doc. 42) to the government's response (Doc. 31) raised the following arguments: 1.) the Court erred by failing to provide sua sponte jury instructions, and, 2.) Counsel was ineffective in failing to request the Sears instruction and failing to argue the evidence was deficient. The only argument not found in the pleadings drafted by his counsel, rather than by the Petitioner pro se is pertaining to trial counsel not securing a plea agreement.
Petitioner then filed the current Rule 60(b) Motion (Doc. 59) and argues the following:
1.) the Court failed to review the merits of claims raised in the § 2255, and, 2.) the Court ruled incorrectly on the entire § 2255 because there was a conflict of interest for counsel, who was both the lawyer for the appellate proceeding and the § 2255 proceeding, which prevented Counsel from properly advancing Payton's interests.
A post-judgment motion such as a Rule 60(b) motion which advances a new claim, that is, a new ground for relief from a conviction, or an attack on the Court's prior resolution of a ground for relief on the merits is a successive petition. See e.g., Gonzalez v. Crosby, 545 U.S. 524, 531 (2005); United States v. Scott, 414 F.3d 815, 816 (7th Cir. 2005). However, a Rule 60(b) motion that does not assert or reassert claims of error in the conviction and instead points to a defect in the integrity of the § 2255 proceedings is not a successive petition. Gonzalez, 545 U.S. at 532; see also Scott, 414 F.3d at 816. Generally, decisions to deny a § 2255 petition based on the failure to exhaust state remedies, procedural default or the statute of limitations are not decisions on the merits and may be attacked in a Rule 60(b) motion without amounting to a successive petition. Gonzalez, 545 U.S. at 532 n. 4.
It is also important to note "Rule 60(b) cannot be used to seek relief on the basis that the movant's conviction was based on a mistake of law. . . ." Dunlap v. Litscher, 301 F.3d 873, 876 (7th Cir. 2002), cert. denied sub nom Dunlap v. Frank, 539 U.S. 962 (2003). A Rule 60(b) motion that seeks relief based on a mistake of law after a § 2255 petition has been resolved constitutes a successive petition subject to the certification requirement of § 2255. Id. In order for this Court to consider a successive petition, the Seventh Circuit Court ...