Opinion
S3 92 Cr. 550 (AGS).
September 12, 2006
MICHAEL J. GARCIA, ESQ., United States Attorney for the Southern District of New York, New York, New York.
PEDRO GUZMAN, Defendant Pro Se FCI Loretto, Loretto, Pennsylvania.
MEMORANDUM DECISION
Pro se defendant Pedro Guzman moves pursuant to Rule 60(b) of the Federal Rules of Civil Procedure for reconsideration of this Court's decisions denying his motions pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons that follow, the motion for reconsideration is denied as well.
BACKGROUND
The late Honorable Allen G. Schwartz of this Court presided over Guzman's trial. The amended criminal judgment for Guzman, dated and signed by Judge Schwartz on January 16, 1996, shows that Guzman was found guilty of one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and was sentenced to 360 months imprisonment, to be followed by ten years' supervised release. On October 14, 1998, Guzman filed two pro se motions in this Court. The first was titled a "Motion for Stay of Pending Decision in Regard to Petitioner's Application Pursuant to 18 U.S.C. § 3582" ("First Motion"), and the second was titled a "Motion for Relief From a Judgment Due to Newly Discovered Evidence of Fraud Upon the Court Pursuant to the Saving Provision of Rule 60(b), Federal Rules of Civil Procedure In Violation of 18 U.S.C. §§ 2071(b) and 2076" ("Second Motion"). In addition, on December 17, 1998, Guzman filed a pro se motion titled a "Motion to Take Judicial Notice of Adjudicated Facts in Violation of the Laws of the United States; Which Deprived Petitioner's Substantive and Procedural Rights, Ipso Facto, In Violation of the Due Process Clause, U.S. Constitution's Fifth Amendment" ("Third Motion").
In two separate orders dated July 16, 1999, and entered on July 19, 1999, Judge Schwartz denied all three motions. In the first order, Judge Schwartz held that the First Motion was moot and the Second Motion, to the extent that it sought relief under 28 U.S.C. § 2255, was procedurally barred. Judge Schwartz also noted that Guzman's claims "regarding the legality of his indictment are completely meritless and have already been addressed by this Court in its denial of co-defendant Carlos Perdomo's § 2255 motion." United States v. Guzman, No. 92 Cr. 550 (S.D.N.Y. July 16, 1999) (Doc. 354) (citing Perdomo v. United States, No. 97 Civ. 0282, 1998 WL 726033 (S.D.N.Y. Oct. 14, 1998)). In the second order, Judge Schwartz denied the Third Motion, noting that it was "essentially another § 2255 petition" that repeated claims from Guzman's previous motions. United States v. Guzman, No. 92 Cr. 550 (S.D.N.Y. July 16, 1999) (Doc. 355). Furthermore, he found that "[a]ll of these claims have already been found to be time-barred and/or meritless." Id.
On April 3, 2000, Guzman filed a pro se application, titled a "Notice of Appeal, Petition for Leave to Proceed In Forma Pauperis, and Petition For a Certificate of Appealability" ("Notice of Appeal"), by which he sought to appeal the July 16, 1999 orders. In a mandate dated and issued on March 27, 2001, the Second Circuit Court of Appeals denied Guzman's motion for a certificate of appealability and dismissed the appeal. It appears that Guzman later filed a motion in the Second Circuit seeking authorization to bring a successive § 2255 motion in this Court. In a mandate dated and issued on July 9, 2001, however, that motion was denied.
In the present "Motion to Reopen Section 2255's Judgment and Petition For an Independent Action," which was filed on February 23, 2006, Guzman moves this Court to "reopen its judgments dated July 16, 1999 . . . denying [defendant's] § 2255 relief." (Motion at 1). He asserts that the present motion is not a successive § 2255 motion, and that "it merely attacks a defect in [his] § 2255 proceedings' integrity." (Id. at 1-2). Guzman brings his motion under Rule 60(b)(4) of the Federal Rules of Civil Procedure (allowing relief from a civil judgment when "the judgment is void"), or, in the alternative, as a complaint for an independent action based upon fraud upon the court, under the saving clause of Rule 60(b). (Id. at 18; see Fed.R.Civ.P. 60(b) ("This rule does not limit the power of a court to entertain an independent action . . . to set aside a judgment for fraud upon the court.")).
Specifically, Guzman claims that Judge Schwartz failed to "make findings of fact and conclusions of laws as commanded by [section] 2255." (Motion at 12). He asserts that the Government forged the third superseding indictment upon which he was convicted and made allegedly fraudulent representations to the Court regarding the "legality" of the superseding indictment, and that Judge Schwartz relied only on these allegedly fraudulent representations to deny Guzman's § 2255 motions. (Id. at 12-14). Therefore, Guzman states, he is entitled to relief from the July 16, 1999 orders.
DISCUSSION
For present purposes, I liberally construe Guzman's motion as one brought under Rule 60(b) of the Federal Rules of Civil Procedure, and not as a successive § 2255 motion. See Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir. 2001) ("[A] motion under Rule 60(b) to vacate a judgment denying [a § 2255 motion] is not a second or successive [§ 2255 motion] and should therefore be treated as any other motion under Rule 60(b)."). Nevertheless, Guzman's motion is denied.
First, motions under Rule 60(b) must be filed "within a reasonable time." Fed.R.Civ.P. 60(b). The present motion was not filed until nearly seven years after Judge Schwartz denied Guzman's § 2255 motions. Under the circumstances, I am not persuaded that Guzman filed the motion in a "reasonable time."See generally Kellogg v. Strack, 269 F.3d 100, 104 (2d Cir. 2001) (finding two-year delay in bringing Rule 60(b) motion for relief from prior judgment denying habeas petition unreasonable);Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995) (finding eighteen-month delay in bringing Rule 60(b)(6) motion unreasonable).
For example, motions made under Rule 60(b)(1), (2), and (3) must be made within one year from when the judgment, order, or proceeding was entered. Fed.R.Civ.P. 60(b).
Second, even if this motion were timely filed, it would still fail. For a defendant to merit relief under Rule 60(b) from a previous § 2255 proceeding, the Rule 60(b) motion must "attack the integrity of the [§ 2255] proceeding and not the underlying criminal conviction." Harris v. United States, 367 F.3d 74, 76 (2d Cir. 2004). Guzman's assertion that he was convicted on a forged third superseding indictment clearly attacks his trial proceedings and the underlying conviction, and the motion is therefore beyond the scope of Rule 60(b). Though Guzman has attempted to characterize the present motion as an attack on the integrity of his prior § 2255 proceedings, he presents no evidence to support his allegation that the § 2255 proceedings were in any way procedurally flawed. Moreover, Guzman has repeatedly argued the underlying basis of the instant motion — that he was convicted on a forged third superseding indictment — to the Court, see Second Motion at 5-6, Third Motion at 14-16, Notice of Appeal at 6-7, and the claim has been found meritless each time; this time is no exception.
For the foregoing reasons, the motion for reconsideration is denied.
SO ORDERED.