United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Petitioner's
Motion for relief from judgment pursuant to Rule 60(d)(1) of
the Federal Rules of Civil Procedure, (Doc. No. 19).
was indicted in the underlying criminal case in a drug
trafficking conspiracy with fourteen co-defendants.
See (3:09-cv-39, Doc. No. 114). A jury found him
guilty of conspiracy to distribute and possess with intent to
distribute 50 grams or more of crack cocaine. (3:09-cv-39,
Doc. No. 234). The Court sentenced him to 384 months'
imprisonment followed by 15 years of supervised release.
(3:09-cv-39, Doc. No. 460). The Fourth District Court of
Appeals affirmed, United States v. Hudson, 462
Fed.Appx. 357 (4th Cir. 2012), and the United
States Supreme Court denied certiorari, Hudson v. United
States, 566 U.S. 1028 (2012).
21, 2013, Petitioner filed a pro se Motion to Vacate
in the instant civil case pursuant to 28 U.S.C. § 2255,
(Doc. No. 1), in which he raised claims of ineffective
assistance of trial and appellate counsel, and trial court
error. The Government filed a Response in opposition to the
Motion to Vacate on October 3, 2014, arguing that
Petitioner's claims are refuted by the record. (Doc. No.
10). The Court issued an Order on October 15, 2014, granting
Petitioner 21 days to file a reply to the Government's
Response. (Doc. No. 12). Petitioner was served with the Order
by U.S. mail. (Id.). Rather than filing a reply,
Petitioner filed a Notice of Appeal from the Court's
Order. (Doc. No. 13). The Fourth Circuit construed it as an
interlocutory appeal and dismissed it for failure to
prosecute on January 9, 2015. (Doc. No. 16). On April 20,
2015, this Court dismissed the § 2255 Motion to Vacate
for failure to prosecute and closed the case. The Clerk's
Judgment was issued on April 21, 2015. (Doc. No. 18). Both
Orders were served on Petitioner by U.S. mail.
(Id.). Petitioner did not appeal.
February 22, 2018, Petitioner filed the instant pro
se Motion seeking reconsideration of the Court's
April 20, 2015, Order and the April 21, 2015, Clerk's
Order. (Doc. No. 1). He argues that this matter should be
reopened pursuant to Rule 60(d)(1) due to a mistake and to
avoid a miscarriage of justice. He claims to have believed
that the Government's Response was actually an order
denying his § 2255 petition, and that he mistakenly
appealed rather than continuing to litigate the § 2255
matter. He did not realize his error until becoming
acquainted with another inmate who prepared the instant
Motion on his behalf. He argues that the Court erred by
dismissing his § 2255 Motion to Vacate without
considering the relevant factors, and that failure to set
aside the Orders disposing of his § 2255 Motion to
Vacate would be a miscarriage of justice.
60, which addresses relief from a judgment or order, is
available “only to prevent a grave miscarriage of
justice.” United States v. Beggerly, 524 U.S.
38, 47 (1998). Rule 60(b) provides that a party may move to
be relieved from a final judgment or order for reasons
including “mistake, inadvertence, surprise, or
excusable neglect, ” or “any other reason that
justifies relief.” Fed.R.Civ.P. 60(b)(1), (6). A Rule
60(b) motion must be made within a “reasonable time,
” and for reasons including mistake, inadvertence,
surprise, or excusable neglect, “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).
60(d) states that “[t]his rule does not limit a
court's power to: (1) entertain an independent action to
relieve a party from a judgment, order, or proceeding.”
Fed.R.Civ.P. 60(d)(1). An “independent action, ”
refers to a procedure which has been historically known
simply as an independent action in equity to obtain relief
from a judgment. Bankers Mortg. Co. v. United
States, 423 F.2d 73, 78-79 (5th Cir. 1970). Such an
action is usually “a new case in the same court or
another court possessing jurisdiction.” Field v.
GMAC LLC, 2009 WL 6560222 (E.D. Va. Jan. 30, 2009),
aff'd 328 Fed.Appx. 873 (4th Cir.
independent action under Rule 60(d)(1) requires a plaintiff
to show: (1) that the judgment in favor of the defendant
“ought not, in equity and good conscience, ” be
enforced; (2) that he had a “good” claim; (3)
that “fraud, accident, or mistake” prevented him
from obtaining the benefit of his claim; (4) “the
absence of fault or negligence” on his part; and (5)
“the absence of any adequate remedy at law.”
Great Coastal Express, Inc. v. Int'l Bhd. of
Teamsters, 675 F.2d 1349, 1358 (4th Cir. 1982);
accord Bankers Mortg. Co. v. United States, 423 F.2d
73 (5th Cir. 1970); Nat'l Surety Co. v.
State Bank, 120 F. 593 (8th Cir. 1903);
S.E.C. v. ESM Group, Inc., 835 F.2d 270
(11th Cir. 1988).
party cannot relitigate ‘in an independent action
issues that were open to litigation in the former action
where he had a fair opportunity to make his claim or defense
in that action.'” Sinesterra v. Roy, 347
Fed.Appx. 9, 10 (5th Cir. 2009) (quoting
Renteria-Gonzalez v. I.N.S., 322 F.3d 804, 811-12
(5th Cir. 2003)). The requirement that there is no
other available or adequate remedy requires a showing by the
aggrieved party that “there was no opportunity to have
the ground now relied upon to set aside the judgment fully
litigated in the original action.” Gleason v.
Jandrucko, 860 F.2d 556, 560 (2d Cir. 1988) (internal
quotations omitted). “It is fundamental that equity
will not grant relief if the complaining party has, or by
exercising proper diligence would have had, an adequate
remedy at law, or by proceedings in the original action
… to open, vacate, modify, or otherwise obtain relief
against, the judgment.” Campaniello Imports, Ltd.
v. Saporiti Italia S.p.A., 117 F.3d 655, 662 (2d Cir.
1997) (internal quotations omitted).
preliminary matter, Petitioner is unable to proceed pursuant
to Rule 60(d) because he has failed to file this matter as an
independent action. See, e.g., Rease v.
Harvey, 2011 WL 13238501 (N.D.Ga. Feb. 11, 2011). Even
if this Court were to construe the instant Motion as an
independent action, no relief would be warranted under Rule
Petitioner has failed to demonstrate that the mistake or
accident was not his fault. He claims that he mistook the
Government's Reply for an order denying his § 2255
petition due to his ignorance of the law. This contention is
belied by his receipt of the Court's October 15, 2014,
Order which explained in plain language that the Government
had opposed the § 2255 Motion to Vacate and that
Petitioner had the opportunity to respond. (Doc. No. 12).
Further, after the Fourth Circuit dismissed his interlocutory
appeal, the Court entered an Order dismissing his § 2255
petition. Petitioner's claim that he is ignorant of the
law does not excuse his willful ignorance of three Court
Orders which informed him both of his opportunity to contest
the Government's Response, and later, the Court's
final resolution of the case, all of which were provided to
him via U.S. mail. He has failed to establish under these
circumstances that the present situation was not created by
his own carelessness or neglect. See, e.g.,
Asterbadi v. Leitess, 176 Fed.Appx. 426, 430-31 (4th
Cir. 2006) (district court did not abuse its discretion in
denying Rule 60(d)(1) motion for relief from default judgment
entered more than 10 years earlier where movant, by his own
admission, had failed to respond to a complaint that had been
served on him and thus could not show the absence of fault or
negligence on his part); Zulu v. Ruth, 622 Fed.Appx.
55 (2d Cir. 2015) (movant was unable to show that his own
fault, neglect, ...