United States District Court, W.D. North Carolina, Asheville Division
ORDER
MARTIN
REIDINGER UNITED STATES DISTRICT JUDGE.
THIS
MATTER is before the Court on the Petitioner's
“Rule 60(d)(1) and (3) Motion to Vacate the October 28,
2013 Order Denying 2255 Relief Concerning Fraud,
Misrepresentation or Misconduct of an Opposing Party”
[Civil No. 1:12-cv-00315-MR (“CV”), CV Doc.
40][1]
and the Petitioner's “Motion for Post-Conviction
Discovery Pursuant to Rule[ ] 6 of the Rules Governing
Post-Conviction Discovery in §§2254/2255 Cases in
the United States District Courts” [CV Doc. 41].
The
Petitioner moves pursuant to Rule 60(d)(1) and (3) of the
Federal Rules of Civil Procedure for the Court to vacate its
Order denying Petitioner's motion to vacate pursuant to
28 U.S.C. § 2255. [CV Doc. 41].
Rule
60(d)(1) allows the Court to “entertain an independent
action to relieve a party from a judgment, order, or
proceeding.” Fed.R.Civ.P. 60(d)(1). This subdivision
does not apply here, as the Petitioner has not filed an
independent action for relief, but rather has moved to have
the Court's 2013 Order vacated. Rule 60(d)(3) gives the
Court the power to “set aside a judgment for fraud on
the court.” Fed.R.Civ.P. 60(d)(3). Motions under Rule
60(d) must be made “within a reasonable time” of
discovery of the alleged fraud. Apotex Corp. v. Merck
& Co., Inc., 507 F.3d 1357, 1361 (Fed. Cir. 2007).
Further:
Fraud upon the court…requires rigorous proof, as do
other challenges to final judgment, lest the finality
established by Rule 60(b) be overwhelmed by continuing
attacks on the judgment…. Fraud upon the court is
typically limited to egregious events such as bribery of a
judge or juror or improper influence exerted on the court,
affecting the integrity of the court and its ability to
function impartially.
Id. (citations omitted).
As
grounds for the instant motion, the Petitioner asserts that
the Assistant United States Attorney who represented the
United States in the underlying criminal action (the
“AUSA”) committed a fraud on the court. Namely,
the Petitioner contends that the AUSA misrepresented to the
Court that certain documents necessary to obtaining a wiretap
warrant had been filed with this Court on March 3, 2009,
[2]
when the documents[3] were not actually filed until March 11,
2010 in the context of Petitioner's appeal from his
criminal judgment. [CV Doc. 40 at 4-7]. It is unclear from
the record when Petitioner contends this misrepresentation
was made or under what circumstance. In any event, the record
does not support Petitioner's assertion that the AUSA
intentionally misled the Court regarding any documents in
support of the warrant. Further, the Fourth Circuit affirmed
Petitioner's conviction and sentence after specifically
addressing the issue of whether the Court was supplied with
“full and complete” information to obtain the
wiretap warrant as required by 18 U.S.C. § 2518(1).
United States v. Foster, 416 Fed.Appx. 304, 309 (4th
Cir. 2011) (unpublished decision).
Here,
Petitioner filed his Rule 60(d) motion well more than five
years after the entry of the judgment he wants set aside and
nearly five years after the Fourth Circuit entered its
mandate affirming the Court's judgment. [See CV
Docs. 17, 34]. Furthermore, the facts on which Petitioner
purports to base his motion have been known or knowable to
him since before the Fourth Circuit entered its mandate
affirming the Petitioner's conviction and sentence on
April 19, 2011. [See CR Doc. 595]. As such,
Petitioner did not bring this motion within a reasonable time
of learning of any alleged fraud. See Menashe v.
Sutton, 90 F.Supp. 531, 533 (S.D.N.Y. 1950) (holding
that motion made 28 months after rendition of judgment on
ground that the judgment was procured by fraud on the court
was untimely). As such, the Court will deny Petitioner's
motion as untimely.
Furthermore,
even if Petitioner's motion had been timely filed,
Petitioner has shown no grounds to support a finding of fraud
upon the court. As such, Petitioner's untimely motion for
relief under Rule 60(d) is unsupported in any event. Because
Petitioner's Rule 60(d) motion is denied,
Petitioner's motion for post-conviction discovery will
also be denied.
ORDER
IT
IS, THEREFORE, ORDERED that Petitioner's
“Rule 60(d)(1) and (3) Motion to Vacate the October 28,
2013 Order Denying 2255 Relief Concerning Fraud,
Misrepresentation or Misconduct of an Opposing Party”
[CV Doc. 40] and the Petitioner's “Motion for
Post-Conviction Discovery Pursuant to Rule[ ] 6 of the Rules
Governing Post-Conviction Discovery in §§2254/2255
Cases in the United States District Courts.” [CV Doc.
41] are both DENIED.
IT
IS SO ORDERED.
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