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Nichols v. United States

November 28, 2006

GREGORY NICHOLS PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT



The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge

ORDER

Pending is Petitioner's Motion to Reconsider Order Denying Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255,*fn1 to which the Government responded.*fn2 For the reasons stated below, Petitioner's Motion is Denied and Dismissed.

I. Background

Petitioner was convicted on February 16, 2002, and on August 6, 2003, his conviction was affirmed.*fn3 In the summer of 2004, Petitioner filed his first Motion to Vacate.*fn4 In this Motion, and in his Reply to the Government's Response,*fn5 Petitioner alleged "ineffective assistance of counsel," and alleged that he was entitled to the sentencing guidelines' "safety valve" provision. Petitioner did not include this "safety valve" issue as part of his "ineffective assistance of counsel" allegations but, instead, argued that this provision should have been applied to determine his sentence.Petitioner's Motion to Vacate was denied and dismissed on November 4, 2005.*fn6 However, a Judgment under Rule 58 was not entered.*fn7 At the time that the first Motion was filed, Petitioner was pro se.

On March 16, 2006, two lawyers entered their appearance for Petitioner,*fn8 and filed a Motion for Reconsideration.*fn9 This motion alleges that Petitioner is entitled to an evidentiary hearing on the ineffective assistance of counsel claim, as it pertains to the "safety valve" issue.Petitioner asserts that, but for his attorney's failure to explain this provision, he would have been sentenced to less prison time. Petitioner argues that his attorney deprived him of an opportunity to make an informed decision during the sentencing process.

Petitioner alleges that this part of his ineffective assistance of counsel claim was "misunderstood" or "overlooked"*fn10 in the November 2005 Order.The Government counters that the motion should be dismissed for three reasons: first, it is untimely; second, it is an unauthorized, successive habeas petition; and third, it is frivolous.

II. Authority

The district court has the inherent power to reconsider an interlocutory order any time prior to the entry of judgment.*fn11 However, the Federal Rules of Civil Procedure do not mention motions for reconsideration. Courts typically view this type of motion as a Motion to Alter or Amend Judgment under Rule 59(e), or as a Motion for Relief from Judgment or Order under Rule 60(b).*fn12 Where a party files a motion for reconsideration of a non-final order, or files a motion for reconsideration of a final order more than ten days after the order was entered, then courts treat it as a Rule 60(b) motion.*fn13 In short, motions for reconsideration are nothing more than Rule 60(b) motions when directed at non-final orders.*fn14

Petitioner filed his Motion to Reconsider more than ten days after the order was entered.*fn15 In addition, there was no Judgment entered. Federal Rule of Civil Procedure 58 requires that "[e]very judgment and amended judgment must be set forth on a separate document."*fn16 Without a judgment, the time for appeal is extended, and, arguably, the order of dismissal is non-final.*fn17 Non-final orders are addressed by Rule 60(b).*fn18

Under these circumstances, the Motion for Reconsideration will be treated as a motion for relief under Rule 60(b). Federal Rule of Civil Procedure 60(b) provides that a court may relieve a party from an order 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 trial under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.*fn19 Rule 60(b) "provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances."*fn20 The purpose of Rule 60(b) relief is not to give parties an opportunity to re-argue their case.*fn21 The district court has wide discretion in deciding whether or not to grant a motion under Rule 60(b), and its decision will only be reversed for clear abuse of discretion.*fn22 In this case, petitioner did not allege discovery of new evidence, bad faith, that the judgment is void, or that the judgment was satisfied -- this leaves the first and last reason for relief that are set out in Rule 60.

Rule 60(b)(1) authorizes the district court to grant relief from an order based on a showing of "mistake, inadvertence, surprise, or excusable neglect"*fn23 The catch-all provision in Rule 60(b)(6) requires vacating the judgment in "the interests of justice." These two sub-parts of Rule 60 (b) are discussed more fully below.

Relief is available under Rule 60(b)(6) only where "exceptional circumstances prevented the moving party from seeking redress through the usual channels."*fn24 Under Rule 60 (b)(1), the term "excusable neglect" includes situations where the failure to comply with a filing deadline is caused by negligence.*fn25 It is generally held that "excusable neglect" under Rule 60(b) does not include ignorance or carelessness on the part of an attorney,*fn26 and it does not provide relief because a party forgot to present facts and arguments, before the matter was decided.*fn27 Along the same line, a mistake of law does not amount to excusable neglect.*fn28

Relief under Rule 60(b)(1) for judicial error (other than for judicial inadvertence) is never available.*fn29 In other words, arguing that a court misunderstood or misapplied the law is not grounds for relief under Rule 60(b)(1).*fn30 A Rule 60 (b)(1) motion alleging judicial inadvertence must be made within the time period allowed ...


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