United States District Court, M.D. Alabama, Northern Division
MYRON H. THOMPSON, District Judge.
This matter is before the court on petitioner Nathaniel Salery's motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(6). For the reasons discussed below, the court holds that this motion should be denied.
A jury found Salery guilty of conspiracy to distribute cocaine and cocaine base, engaging in a continuing criminal enterprise ("CCE"), distribution of cocaine, and aiding and abetting the possession with intent to distribute cocaine, and, in May 1995, he was sentenced to life imprisonment on both the CCE and aiding-and-abetting counts and to 480 months on the distribution count, all the terms to run concurrently. See United States v. Salery, 2:94cr62-MHT. The Eleventh Circuit Court of Appeals affirmed his convictions and sentence, see United States v. Morrow, 156 F.3d 185 (11th Cir. 1998) (unpublished table decision), and the United States Supreme Court denied his petition for a writ of certiorari. See Salery v. United States, 525 U.S. 1147 (1999).
In a supplemental proceeding in his criminal case after his appeal, Salery filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See United States v. Salery, 2:94cr62-MHT (Doc. No. 1363). The magistrate judge entered a recommendation that his § 2255 motion should be denied because his claims did not entitle him to relief, see id. (Doc. No. 1618), and, in June 2003, the district court adopted the recommendation and entered a judgment denying his § 2255 motion. See id. (Doc. Nos. 1622 & 1623). The Eleventh Circuit denied his motion for a certificate of appealability. See id. (Doc. No. 1758).
Later, in a separate civil proceeding, Salery filed a pro se pleading styled as a "Motion for Modification of an Imposed Term of Imprisonment or in the Alternative Motion to Stay and Abeyance." Salery v. United States, 2:06cv40-MHT (Doc. No. 1). In that pleading, he challenged his criminal sentence on the ground that it violated the holdings in United States v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004). Because the claims asserted by Salery attacked the fundamental validity of his sentence, this court characterized his pleading as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255-Salery's second. See Salery v. United States, 2:06cv40-MHT (Doc. No. 2) at 3. Because he had not obtained precertification from the Eleventh Circuit authorizing this court to consider a second or successive § 2255 motion, this court summarily denied his § 2255 motion. See id. (Doc. Nos. 2, 4, and 5).
In another separate civil proceeding, Salery filed the instant motion seeking relief under Fed.R.Civ.P. 60(b)(6). See Salery v. United States, 2:14cv384-MHT (Doc. No. 3). He argues that there was a "defect in the integrity" of the proceedings on his first § 2255 motion because this court, when denying that motion in June 2003, failed to address the merits of his claim that the sentence imposed against him violated the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000). See Salery v. United States, 2:14cv384-MHT (Doc. No. 3) at 5-6.
Rule 60(b)(6) allows a court to set aside a judgment for "any other reason that justifies relief." A movant seeking relief under Rule 60(b)(6) must show "extraordinary circumstances" justifying the reopening of a final judgment. Ackermann v. United States, 340 U.S. 193, 199 (1950). "Such circumstances will rarely occur in the habeas context." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
Motions brought under Rule 60(b)(6) "must be made within a reasonable time... after the entry of the judgment or order or the date of the proceeding" challenged. Fed.R.Civ.P. 60(c)(1). Here, Salery attacks a June 2003 judgment of this court, which was more than 10-years old when he filed his instant motion. He has given no reason for his delay in attacking the judgment. Salery's appeal from this court's judgment has been final for over nine years. Under the circumstances, this court finds that Salery's instant motion was not filed within a reasonable time after entry of the judgment he challenges and is therefore untimely. Consequently, his motion for relief under Rule 60(b)(6) is due to be denied on this ground. See, e.g., Soloman v. United States, 300 Fed.App'x 857, 858-59 (11th Cir. 2008) (Rule 60(b) motion on denial of § 2255 motion denied because petitioner "failed to file his motion for relief within a reasonable time, and he did not provide any explanation for the [nine-year] delay" in filing motion); BUC Int'l Corp. v. International Yacht Council, Inc., 517 F.3d 1241, 1275 (11th Cir. 2008) (in deciding what is a "reasonable time" to file a Rule 60(b) motion, the court "must consider the circumstances of each case to determine whether the parties have been prejudiced by the delay and whether a good reason has been presented for failing to take action sooner'").
Even if Salery's instant motion had been filed within a reasonable time, it would still be subject to summary dismissal. As noted, Salery's stated ground for Rule 60(b)(6) relief is that this court failed to address his Apprendi claim on the merits when denying his first § 2255 motion in June 2003 and that, consequently, there was a defect in the integrity of the proceedings on the § 2255 motion. Rule 60(b) motions properly may attack "some defect in the integrity of the federal habeas proceedings." Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). This includes an "assert[ion] that a previous ruling which precluded a merits determination was in error-for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar." Id. at 532 n.4. In contrast, arguments "attack[ing] the federal court's previous resolution of a claim on the merits " or "present[ing] new claims for relief from [the underlying] judgment of conviction" are beyond the scope of Rule 60(b) and may be brought in only a successive habeas motion. Id. at 531-32 (emphasis in original).
Notwithstanding Salery's present contention, Part III of the magistrate judge's May 2003 recommendation that his first § 2255 motion be denied, which was subsequently adopted by the district court, addresses his Apprendi claim as follows:
"On July 18, 2000, Salery filed a SUPPLEMENTAL MEMORANDUM OF LAW BASED UPON DECISION OF SUPREME COURT IN APPRENDI V. NEW JERSEY .' (Doc. # 1446). Although Salery, in his supplemental memorandum, argues an Apprendi claim, at no time did he move to amend his § 2255 motion to raise an Apprendi claim. Thus, the court concludes that Salery has failed to present a cognizable Apprendi claim to the court.
"Moreover, Apprendi is not retroactively applicable to cases which became final before the Apprendi decision was released on June 26, 2000. Hamm v. United States, 269 F.3d 1247 (11th Cir. 2001). Salery's conviction became final on the day the Supreme Court denied his petition for certiorari. Washington v. United States, 243 F.3d 1299, 1300-01 (11th Cir. 2001) (per curiam). The Supreme Court denied Salery's petition on February 22, 1999; consequently, his conviction became final well before the date of the Apprendi decision on June 26, 2000. Apprendi errors are not jurisdictional, and Apprendi ...