United States District Court, Middle District of Alabama, Northern Division
July 30, 2014
UNITED STATES OF AMERICA,
JIMMY CARTER, JR.
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE
In a motion filed on July 21, 2014, federal inmate Jimmy Carter, Jr. (“Carter”) purports to bring an independent action for relief from judgment under Fed.R.Civ.P. 60(d)(1). Doc. #54. Carter contends that, in ruling on his motion for relief from judgment under Fed.R.Civ.P. 60(b)(6), which he filed in December 2012,  this court failed to address the merits of Claim Four in his 28 U.S.C. § 2255 motion, which was an allegation that his attorney rendered ineffective assistance of counsel at his sentencing in 2003. This court’s alleged failure to address the merits of Claim Four when denying Carter’s § 2255 motion in 2008 was the asserted basis for relief in Carter’s Rule 60(b)(6) motion. Carter maintains that in denying his Rule 60(b)(6) motion as untimely, this court “yet again fail[ed] to re-open and adjudicate the merits on the petitioner’s 4th claim of his counsel’s ineffectiveness.” Doc. #54 at 3-4. Carter is incorrect.
While finding Carter’s Rule 60(b)(6) motion to be untimely because it was not filed within a reasonable time, this court held that “[e]ven if Carter’s motion was filed within a reasonable time, it lacks merit.” Civil Action No. 2:05cv1016-MEF, Doc. #42 at 4. The court then fully discussed how, Carter’s allegation notwithstanding, the magistrate judge’s 2008 recommendation to deny Carter’s § 2255 motion, which was adopted by the district court, addressed the merits of Claim Four in Carter’s § 2255 motion. See id. at 4-6. There is simply no merit to Carter’s assertion this court failed to address the merits of Claim Four.
As with Carter’s Rule 60(b)(6) motion, his Rule 60(d)(1) motion is another attempt to relitigate a claim addressed on the merits in the magistrate judge’s § 2255 recommendation adopted by the district court. Parties may not use Rule 60 to relitigate the merits of claims. See Gonzalez v. Sec’y for Dept. of Corrs., 366 F.3d 1253, 1291-92 (11th Cir. 2004)). Carter’s Rule 60(d)(1) motion is without merit and should be denied.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that Carter’s motion for relief from judgment under Fed.R.Civ.P. 60(d)(1) (Doc. #54) should be DENIED.
It is further ORDERED that the parties shall file any objections to this Recommendation on or before August 13, 2014. A party must specifically identify the findings in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge’s proposed findings and recommendations shall bar a party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc).