United States District Court, S.D. Alabama, Southern Division
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant, Frank James
Abston's (“Abston”) Motion to Re-Open §
2255 Proceedings Under the Federal Rules of Civil Procedure.
(Doc. 220). For the reasons set forth herein below, the
motion is due to be denied.
November 21, 2011, Petitioner pled guilty to-and was
convicted of- conspiracy to possess with the intent to
distribute cocaine in violation of 21 U.S.C. § 846.
(Doc. 153). On July 11, 2012, Abston was sentenced to life
imprisonment on the conviction as well as ten years of
supervised release following his release from prison, and an
assessment of one hundred dollars. (Id.). On
September 16, 2013, the Eleventh Circuit Court of Appeals
affirmed Abston's conviction. (Doc. 176).
October 30, 2014, Abston filed a Motion to Vacate, Set Aside,
or Correct Sentence under 28 U.S.C. § 2255 asserting
that (1) his plea was not entered knowingly and voluntarily
due to ineffective assistance of counsel, (2) his 5th and 6th
Amendment Rights were violated by the court's enhancement
of his sentence based on his prior conviction, (3) his
sentence was unconstitutional, and (4) he had ineffective
assistance of counsel at sentencing. (Doc. 178). On April 2,
2015, United States Magistrate Judge Bert Milling, Jr.
entered a Report and Recommendation recommending that
Abston's petition be dismissed as all of his claims
lacked merit. (Doc. 195). Abston filed an Objection to the
Report and Recommendation (Doc. 198), but on June 8, 2015,
the Report and Recommendation was adopted as the opinion of
this Court (Doc. 204). The Order additionally denied Abston a
certificate of appealability, as he was not entitled to
appeal in forma pauperis. (Id.)
February 9, 2018, Abston filed the instant Motion to Re-open
his § 2255 proceedings pursuant to Fed. R. Civ. Pro.
60(b)(2) and (4). (Doc. 220).
60(b) allows a party to seek relief from a final judgment,
and request reopening of his case, under a limited set of
circumstances including fraud, mistake, and newly discovered
evidence. Fed.R.Civ.P. Rule 60(b). However, there are
limitations on habeas petitioners' ability to rely on
Rule 60(b) motions to circumvent statutory restrictions on
second or successive § 2254 or § 2255 petitions.
The Eleventh Circuit has explained that “Federal Rule
of Civil Procedure 60 provides a basis, but only a limited
basis, for a party to seek relief from a final judgment in a
habeas case.” Williams v. Chatman, 510 F.3d
1290, 1293 (11th Cir. 2007).
result, before considering the merits of Abston's motion,
this Court must determine whether it has jurisdiction, i.e.,
whether Abston's Rule 60(b) motion is truly a second or
successive § 2255 petition. “If Petitioner's
60(b) motion is not really a second or successive habeas
petition, the district court has jurisdiction to consider the
merits of the motion.” Zakrzewski v.
McDonough, 490 F.3d 1264, 1267 (11th Cir. 2007). The law
is clear that “a Rule 60(b) motion is to be treated as
a successive habeas petition if it: (1) seeks to add a new
ground of relief; or (2) attacks the federal court's
previous resolution of a claim on the merits.”
Williams, 510 F.3d at 1293-94 (quoting Gonzalez
v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480
(2005)). By contrast, the Rule 60(b) motion is not to be
regarded as a successive petition if it “attacks, not
the substance of the federal court's resolution of a
claim on the merits, but some defect in the integrity of the
federal habeas proceedings.” Williams, 510
F.3d at 1294 (quoting Gonzalez, 545 U.S. at 532).
motion before this Court, Abston states he seeks relief
because “the integrity of the previous habeas corpus
proceedings under 28 U.S.C. § 2255 were defective when
the Court failed to properly consider movant's right to
an effective remedy under § 2255 based on the
substantial out of record evidence presented therein.”
(Doc. 220 at 5). Abston essentially argues that this Court
failed to consider the evidence he submitted with his initial
§ 2255 motion, a statement by his previous counsel that
he did not remember receiving an § 851 enhancement
filing, and instead improperly relied on the case docket
sheet showing that the Government electronically filed the
§ 851 enhancement on the morning of Abston's guilty
plea. He now submits a second email supporting his position.
Despite the fact that Abston classifies his motion as
attacking the integrity of the previous habeas proceedings,
Abston is truly attacking the court's previous resolution
of the claim on the merits. As such, Abston's motion is,
in actuality, a second or successive habeas petition and this
Court does not have jurisdiction to consider
even if this Court were to construe Abston's motion for
relief from final judgment as not presenting a successive
habeas claim, Abston is still not entitled to relief under
Rule 60(b)(2) because the motion is time-barred. “A
motion under Rule 60(b) must be made within a reasonable time
- and for reasons (1), (2), and (3) no more than a year after
the entry of the judgment or order or the date of the
proceeding.” Fed.R.Civ.P. 60(c)(1). Abston's motion
pursuant to Rule 60(b)(2) was filed on February 9, 2018, more
than two years after this Court's June 8, 2015 entry of
judgment denying his § 2255 motion. Therefore, Abston
is precluded from seeking relief under Rule 60(b)(2), because
his motion is untimely.
assuming Abston's motion pursuant to Rule 60(b)(2) was
not time barred and also assuming that Abston's
assertions pursuant to Rule 60(b)(2) and (4), were a true
attack on the integrity of the previous habeas proceeding
rendering this Court with jurisdiction, denial of
Abston's motion would still be warranted. Reconsideration
under Federal Rule of Civil Procedure 60(b) is permitted for
the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new ...