United States v. Altiery

UNITED STATES OF AMERICA v. CARLOS ALTIERY

No. 2:13-CR-00042-1-JRG

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE

March 22, 2021

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Petitioner Carlos Altiery's Motion for Relief from a Final Judgment Pursuant to Federal Rule of Civil Procedure 60(b) [Doc. 124], the United States' Response in Opposition [Doc. 127], and Mr. Altiery's Reply [Doc. 129]. For the reasons herein, the Court will transfer Mr. Altiery's motion to the Sixth Circuit Court of Appeals.

I. BACKGROUND

In 2016, Mr. Altiery filed a petition for post-conviction relief under 28 U.S.C. § 2255, [Pet., Doc. 95], asserting that the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015) nullified his career-offender status under USSG § 4B1.1 and that this Court violated his due-process rights by designating him as a career offender at sentencing. [Id. at 4, 7]. Also, Mr. Altiery brought two claims for ineffective assistance of counsel, arguing that his counsel was ineffective because he failed to heed his request to appeal his sentence and failed to conduct adequate research and present evidence at his sentencing hearing. [Id. at 4, 5, 8]. The Court dismissed Mr. Altiery's petition with prejudice and declined to issue a certificate of appealability to him. [Mem. Op., Doc. 111, at 7-8; J. Order, Doc. 112, at 1]. On appeal, the Sixth Circuit also declined to issue a certificate of appealability. [Sixth Circuit Order, Doc. 120, at 3].

Mr. Altiery has now filed a motion challenging the Court's judgment under Federal Rule of Civil Procedure 60(b)(6), under which he argues that the Court, when it denied his § 2255 petition, "mistakenly failed to address" his claim that his counsel was ineffective for failing to file an appeal. [Pet'r's Mot. at 21]. In response, the United States acknowledges that "[i]t is true that, when denying petitioner's § 2255 motion, this Court did not explicitly discuss petitioner's allegation that counsel was ineffective for not filing a direct appeal." [United States' Resp. at 3]. But the United States maintains the Court "had no obligation to consider the merits of the ineffectiveness claim because petitioner's § 2255 motion was unquestionably untimely and petitioner did not prove his entitlement to equitable tolling of the statute of limitations." [Id.]. Having carefully reviewed and considered the parties' arguments, the Court is now prepared to rule on Mr. Altiery's motion.

II. LEGAL STANDARD

Rule 60(b) provides that "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment" for six reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b)(1)-(6). Rule 60(b)(1)-(5) "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." Gonzalez v. Crosby, 545 U.S. 524, 528 (2005) (footnote omitted).

Rule 60(b)(6), on the other hand, allows a party to seek relief for "any other reason that justifies relief" from the judgment. Fed. R. Civ. P. 60(b)(6). Rule 60(b)(6) "vests wide discretionin courts," Buck v. Davis, 137 S. Ct. 759, 777 (2017), but it is available only in "extraordinary circumstances," Gonzalez, 545 U.S. at 535 (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)), because of "public policy favoring finality of judgments," Waifersong Ltd. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992); see Custis v. United States, 511 U.S. 485, 497 (1994) (stating that "'inroads on the concept of finality tend to undermine confidence in the integrity of our procedures' and inevitably delay and impair the orderly administration of justice" (quotation omitted)); see also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 873 (1988) (Rehnquist, C.J., dissenting) ("This very strict interpretation of Rule 60(b) is essential if the finality of judgments is to be preserved.").

An extraordinary circumstance for Rule 60(b)(6) relief "will rarely occur in the habeas context," Gonzalez, 545 U.S. at 535, but when deciding whether extraordinary circumstances are present, courts may nevertheless consider "a wide range of factors," Buck, 137 S Ct. at 778. For instance, Rule 60(b)(6) relief "is especially appropriate in cases where the interest in finality is somehow abrogated," Blue Diamond Coal Co. v. Trs. of UMWA Combined Beneficiary Fund, 249 F.3d 519, 528 (6th Cir. 2001) (citation omitted), or when "'something more' than one of the grounds contained in Rule 60(b)'s first five clauses is present," Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1988) (quotation omitted). Along similar lines, courts may consider "the risk of injustice to the parties" and "the risk of undermining the public confidence in the judicial process." Buck, 137 S Ct. at 778 (quotation omitted).

III. ANALYSIS

When a petitioner like Mr. Altiery files a Rule 60(b) motion, the "threshold inquiry is whether [the petitioner's] Rule 60(b) motion is a 'true' Rule 60(b) motion or simply a 'second or successive' habeas application cloaked in Rule 60(b) garb." Franklin v. Jenkins, 839 F.3d465, 473 (6th Cir. 2016) (citing Gonzalez, 545 U.S. at 531). This threshold inquiry is necessary because before a petitioner may file "a second or successive application . . . in the district court, [he] shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3(A); see id. § 2255(h) ("A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals."). If Mr. Altiery's motion is not a true Rule 60(b) motion but instead a second or successive petition for relief under § 2255, then the Court lacks jurisdiction to consider it. See Moreland v. Robinson, 813 F.3d 315, 322 (6th Cir. 2016) ("Failure to obtain precertification for the filing of such a petition deprives the district court of jurisdiction to adjudicate the claims raised in such a petition." (citing Burton v. Stewart, 549 U.S. 147, 149, 152-53 (2007))). A true Rule 60(b) motion "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." Gonzalez, 545 U.S. at 532 (footnote omitted). But before determining whether Mr. Altiery's motion attacks the integrity of the § 2255 proceedings or the substance of those proceedings, the Court will address procedural defects in the motion—defects that, if the United States had raised them in its response—would have dispensed with the motion.

A. Procedural Defects

When Mr. Altiery contested the Court's judgment on appeal, he did not raise the Court's failure to address his claim for ineffective assistance of counsel. See [Sixth Circuit's Order at 1-3]. Mr. Altiery's failure to challenge this issue on appeal should foreclose the relief he requests in his Rule 60(b) motion. See GenCorp, Inc. v. Olin Corp., 477 F.3d 368, 373 (6th Cir. 2007) ("[T]he district court correctly rejected [the plaintiff's] Rule 60(b)(6) motion. First, as we have shown, a Rule 60(b)(6) motion is not a substitute for an appeal and, it follows, may not beinvoked to resurrect a waived argument."); Hopper, 867 F.2d at 294 ("The parties may not use a Rule 60(b) motion as a substitute for an appeal[.]" (citation omitted)); see also Pelino v. Superintendent Greene Sci, No. 18-2481, 2020 WL 7230249, at *1 (3d Cir. Feb. 27, 2020) ("[The plaintiff] also alleged that the District Court failed to address one of his claims, but he could have raised that argument on appeal, and '[a] request for relief pursuant to Rule 60(b) cannot be used as a substitute for an appeal.'" (quotation omitted)); Wilson v. Kline, No. 1:02-CV-936, 2008 WL 2579135, at *1 (W.D. Mich. June 27, 2008) ("[A] Rule 60(b) motion is not a substitute for an appeal. This principle does not help Plaintiff, because it merely means that a party cannot use a Rule 60(b) motion to raise an argument that should have been raised on appeal." (citing GenCorp, All F.3d at 373)).

And even if Mr. Altiery were not leaning on his Rule 60(b) motion as a substitute for an appeal, it would still fail because it is untimely. Although Mr. Altiery styles his motion as a Rule 60(b)(6) motion, he does not argue that "'something more' than one of the grounds contained in Rule 60(b)'s first five clauses is present." Hopper, 867 F.2d at 294 (quotation omitted). Rather, he argues that the Court "mistakenly" failed to address one of the claims in his petition, [Pet'r's Mot. at 21], and his motion therefore falls within the ambits of Rule 60(b)(1) rather than Rule 60(b)(6), Tyler v. Anderson, 749 F.3d 499, 509-10 (6th Cir. 2014); see Fed. R. Civ. P. 60(b)(1) (stating that "mistake" is a basis for relief from a final judgment); Willis v. Jones, 329 F. App'x 7, 14 (6th Cir. 2009) ("[The petitioner] explicitly characterized his motion as a Rule 60(b)(6) motion, but it actually fits within multiple subsections of Rule 60(b). . . . [His] non-successive arguments are properly classified as motions under Rule 60(b)(1)." (footnote omitted)); Tyler v. Anderson, No. 1:96 CV 1881, 2013 WL 3992590, at *5 (N.D. Ohio Aug. 5, 2013) ("This Court finds that its alleged failure to address two of [the petitioner's] claims is a 'mistake[] t...