Opinion
C-1-99-968, CR-1-96-050-01.
September 18, 2009
ORDER
The matter is before the Court upon the Movant's Motion for Relief from Judgment and Order pursuant to Fed.R.Civ.Pro. 60(b) (doc. no. 211), the United States' Response in Opposition (doc. no. 212), Movant's Reply (doc. no. 214), and Reply Memorandum in Support of Motion for Relief from Judgment filed on behalf of Cordell by the attorney this Court appointed to assist him (doc. no. 220).
Alvin Cordell, Ricardo Maxwell, and Darrin Clack were charged in an Indictment filed April 17, 1996. Cordell was charged in two of three counts. Count One alleged that from on or about September 30, 1992 up to and including the date of the Indictment, he conspired to distribute and to possess with intent to distribute marijuana and cocaine. Count Two alleged that on or about March 20, 1996, Cordell attempted to possess with intent to distribute in excess of fifty (50) grams of cocaine base (crack cocaine).
At trial, the evidence presented included recordings of Cordell, money and drugs seized from him and other co-conspirators, drugs found at locations used by the conspirators, drug paraphernalia, and the testimony of co-conspirators, Michael Bowens and Darrin Clack.
A jury found Cordell guilty of both counts at the conclusion of trial. At sentencing, Movant was found to be a career offender, based upon prior state of Ohio convictions, and also received a 4-level enhancement under U.S.S.G. § 3B1.1 for his role in the offense.
Cordell was sentenced to life imprisonment on each count, to run concurrently, by this Court on May 5, 1997 (doc. no. 123). Each count stands on its own. These convictions were affirmed by the United States Court of Appeals for the Sixth Circuit on November 17, 1998 in United States v. Maxwell , 160 F.3d 1071 (6th Cir. 1998).
Cordell filed a Motion pursuant to § 2255 (doc. no. 141) in which he alleged violations of his Fifth Amendment due process rights and his rights to effective counsel as guaranteed by the Sixth Amendment. Additionally, he claimed that intervening changes in the law necessitated a vacation of his conviction because the jury failed to find him guilty of all the elements of the offense.
His allegations of ineffective assistance of counsel were based upon a perceived conflict of interest regarding counsel's representation of the two Government witnesses prior to Cordell's trial. Movant alleged his trial counsel, Kenneth Lawson ("Lawson"), failed to cross-examine the prior clients in areas where he knew these witnesses, Michael Bowens and Darrin Clack, had given previous inconsistent statements. Movant also sought relief alleging counsel did not pass on to him a plea offer from the Government.
A hearing was held on Friday, May 4, 2001. Lawson testified that he had represented both of the witnesses in prior civil and traffic cases. He stated he was not on good terms with Michael Bowens at the time of the trial and he categorically denied refraining from asking any questions of either Bowens or Clack based upon his prior representation of them. He assessed the testimony of the two witnesses, opining that "Clack hadn't hurt" Cordell because he was caught in inconsistencies with his grand jury testimony, but that Bowens had "killed" Cordell by corroborating facts about the drug operation. Bowens was not charged in the federal case, but they had been arrested together. Lawson explained that he had informed Bowens he could not represent him anymore when Bowens told him he had become an informant in the case against Cordell. Darrin Clack had been indicted with Cordell, but had entered a guilty plea and agreed to testify against Cordell at his trial.
Movant's § 2255 motion was denied by the Court. In its opinion, this Court found:
Attorney Lawson effectively cross-examined both witnesses on the basis of contradictory testimony before the Grand Jury. There has been no demonstration of specific instances on the record that suggest conflict. The conflicting defense strategies suggested by Movant appear to be entirely speculative. The Court is not persuaded that the contradictory information suggested by Movant would have been any more effective. Movant has failed to show how the prior representations have created an actual conflict. The record does not disclose an actual conflict. It does disclose aggressive and effective cross-examination. Furthermore, the witnesses' testimony only confirmed relationships the jury had already heard about through the Movant's own voice.
Movant has not produced direct or circumstantial evidence that his lawyer did anything detrimental or failed to do something advantageous. Movant has not shown trial attorney represented conflicting interests, that his performance was affected, or any lapse in representation. Movant cited no evidence to suggest that trial counsel actively lessened his defense as a result of his prior representation, nor does this court find evidence of an actual conflict of interest. To the contrary, trial counsel vigorously pursued objections and presented a strong case.
The Court further found no actual conflict of interest and no evidence that a plea agreement had been offered.
This ruling was affirmed on appeal in Cordell v. United States, 193 Fed.Appx. 479 (6th Cir. 2006). The United States Court of Appeals for the Sixth Circuit found that Cordell had not shown "instances in the record" suggesting an "impairment of his interests, citing Lordi v. Ishee, 384 F.3d 189 (6th Cir. 2004). The Court of Appeals also found, as had this Court, that Lawson vigorously cross-examined both Bowens and Clack, including leading Clack "to concede on cross-examination that he had lied under oath, and Lawson also cast doubt on Clack's credibility by inquiring about the reduced sentence Clack would receive for his testimony." Cordell, 193 Fed.Appx. at 482-483. The Court of Appeals concluded that Lawson's failure to point out their additional inconsistencies was not an error of constitutional magnitude.
Subsequent to these events, trial attorney, Kenneth Lawson, was investigated, suspended by the Supreme Court of Ohio, and eventually charged in a one-count Information filed on September 5, 2008 with conspiracy to obtain drugs (percodan, oxycontin, and percocet) for his own use in violation of 21 U.S.C. § 846.
Rule 60(b) Motion
Cordell moves for relief from the judgment and Order filed in this case denying his § 2255 Motion. Citing Fed.R.Civ.Pro. 60(b)(2), (3), and (6), Movant claims he is attacking the proprietary nature of that judgment. He claims the adverse ruling was based on outright lies and the proceedings were otherwise tainted. He claims that Lawson perpetrated a fraud on the Court which denied Movant due process, the right to full and fair access to the court, and a right to full and fair determination of the issues in the case. "Clearly, this court would not have believed a drug addict" when he asserted his representation of Clack did not affect his ability to cross-examine Clack, Movant argues.
Cordell submits "new evidence" in the form of an affidavit from Darrin V. Clack, the subject of his claim of conflict of interest in the § 2255 Motion denied by the Court, transcripts of the Hearing on the § 2255 motion, the Information, Plea Agreement, and Statement of Facts filed in Lawson's criminal case, a letter Lawson wrote in relation to the criminal proceedings, the Ohio Supreme Court's Order suspending Lawson from practice, and transcripts from hearing before the Board of Commissioners on Grievance and Discipline of the Supreme Court of Ohio.
In his affidavit, Clack states that the drugs which were the subject of Count Two in the Cordell trial were actually intended for Lawson. As a former client of Lawson, he claims he was warned by Lawson not to disclose that fact, and that Lawson masterminded the scheme to obtain a large quantity of drugs for his own use. It is disclosed by the documents that Lawson had developed a drug problem, during the worst of which he was under a severe and debilitating disability.
In its response, the United States argues the Motion is, in fact, a second or successive § 2255 petition; if found to be a rule 60(b) motion, it is time-barred by internal time limits; the issues raised have already been decided by this Court and the court of appeals; and Cordell's claims are legally insufficient. The United States asserts that Cordell's motion should be transferred to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631 and In re Sims, 111 F.3d 45 (6th Cir. 1997).
A Reply was filed by the Movant and the attorney appointed to represent him in these proceedings. Movant claims he "does not come close to reasserting any claims of error in his federal conviction." Cordell claims that he does not reassert that Lawson's prior representation of Clack and Bowens amounted to a conflict of interest, but asserts that Lawson lied to the court at the evidentiary hearing and that he was under the influence of drugs during the hearing on movant's § 2255 Motion. He claims he has presented clear and convincing evidence of fraud. Cordell asserts the Court should vacate the judgment, or, at a minimum, should order an evidentiary hearing to allow Cordell an opportunity to further develop the record. In the reply filed on his behalf, it is argued that the evidence presented clearly exposes the defective foundation of this Court's decision on Cordell's § 2255 petition; the internal time limits of Rule 60(b)(3) should not apply because the fraud complained of was perpetrated by Cordell's attorney and not the opposing party, thus more appropriately considered under 60(b)(6); the evidence presented shows the error of the decision, but not a new issue or instance of ineffective assistance; and Lawson's testimony was fraudulent and, therefore, indicative of a conflict of interest, ineffective assistance, and actual innocence. He contends that to consider this a § 2255 Motion in these circumstances would essentially invalidate Rule 60(b) because it does not introduce new issues or claims.
Analysis
Both the Movant and the government cite the Court to the discussion in In re Abdur' Rahman, 392 F.3d 174 (6th Cir. 2004) (en banc), in which the Sixth Circuit held that in cases "[in] `which the factual predicate in support of the motion attacks the manner in which the earlier habeas judgment was procured and is based on one or more of the grounds enumerated in Rule 60(b),' this court may consider the claim as a motion under Rule 60(b) instead of dismissing it as a second or successive habeas petition." Post v. Bradshaw, 422 F.3d 419, 422 (6th Cir. 2005) (quoting Abdur' Rahman, 392 F.3d at 177). In Bell v. Abur' Rahman, 545 U.S. 1151 (2005), however, the Supreme Court of the United States ordered that judgment vacated, and remanded the case to the United States Court of Appeals for the Sixth Circuit for consideration in light of Gonzalez v. Crosby, 545 U.S. 524 (2005). As recognized by the Movant in his reply, Gonzalez is controlling.
In Gonzalez, the United States Supreme Court analyzed the case of a state court petitioner whose petition had been dismissed as time barred when the District Court concluded that the federal limitations period was not tolled. The Supreme Court subsequently held that a post-conviction relief petition can toll the statute of limitations. As a result, petitioner filed a Federal Rule of Civil Procedure 60(b)(6) motion. In discussing the interplay of the Anti-terrorism and Effective Death Penalty Act (AEDPA) and Rule 60(b)(6), the Supreme Court states:
AEDPA did not expressly circumscribe the operation of Rule 60(b). (By contrast, AEDPA directly amended other provisions of the Federal Rules. See, e.g., AEDPA, 103, 110 Stat. 1218 (amending Fed. Rule App. Proc. 22).) The new habeas restrictions introduced by AEDPA are made indirectly relevant, however, by the fact that Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus proceedings under 28 U.S.C. § 2254 only to the extent that [it is] not inconsistent with applicable federal statutory provisions and rules. 28 U.S.C. § 2254 Rule 11; see Fed. Rule Civ. Proc. 81(a)(2). The relevant provisions of the AEDPA-amended habeas statutes, 28 U.S.C. §§ 2244(b)(1)-(3), impose three requirements on second or successive habeas petitions: First, any claim that has already been adjudicated in a previous petition must be dismissed. § 2244(b)(1). Second, any claim that has not already been adjudicated must be dismissed unless it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence. § 2244(b)(2). Third, before the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet § 2244(b)(2)'s new-rule or actual-innocence provisions. 2244(b)(3).Id. at 529.
Fed.R.Civ.P. 60(b), Grounds for Relief from a Final Judgment, Order, or Proceeding, provides:
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following 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 . . .;
(3) fraud . . ., 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.
Although the Supreme Court notes that "we consider only the extent to which Rule 60(b) applies to habeas proceedings under 28 U.S.C. § 2254, which governs federal habeas relief for prisoners convicted in state court", Gonzalez, 545 U.S. at 529 n. 3, the reasoning in Gonzalez can be applied to § 2255. Nailor v. United States, 487 F.3d 1018, 1021 (6th Cir. 2007), cert denied, ___ U.S. ___, 128 S.Ct. 337 (2007). As discussed in Nailor,
In Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), the Supreme Court considered the relationship between Rule 60(b) and habeas review. Although the Gonzalez Court explicitly limited its holding to the relationship between Rule 60(b) and 28 U.S.C. § 2254, id. at 529 n. 3, 125 S.Ct. 2641, its reasoning dictates our resolution of the issue at hand. See United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006) (applying the Gonzalez Court's "mode of analysis" to a case involving § 2255). In Gonzalez, the Court first noted that Rule 11 of the Rules Governing Section 2254 Cases makes clear that "Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus proceedings under 28 U.S.C. § 2254 only `to the extent that [it is] not inconsistent with' applicable federal statutory provisions and rules." Id. (quoting Rule 11, Rules Governing Section 2254 Cases) (alteration in original) (footnote omitted). Similarly, Rule 12 of the Rules Governing Section 2255 Proceedings makes clear that the Federal Rules of Civil Procedure apply to § 2255 proceedings only "to the extent that they are not inconsistent with any statutory provisions or these rules." Rule 12, Rules Governing Section 2255 Proceedings.487 F.3d at 1021. The Nailor court explains:
Thus, where § 2254 and § 2244 speak of habeas corpus applications and claims, § 2255 speaks of motions to vacate, set aside, or correct the sentence. Still, much of the Gonzalez Court's reasoning is applicable. A Rule 60(b) motion that attempts "to add a new ground for relief" is effectively a motion to vacate, set aside, or correct the sentence, and thus should be considered a § 2255 motion. See Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641. Likewise, a Rule 60(b) motion should be considered a § 2255 motion to vacate, set aside, or correct the sentence "if it attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief." See, id. In at least these two circumstances, "use of Rule 60(b) would impermissibly circumvent the requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive-petition bar." Id.487 F.3d at 1022-23. The Nailor court found that the district court had correctly construed Nailor's Rule 60(b)(6) motion as a § 2255 motion because 1) "Nailor's Rule 60(b)(6) motion could be read to attack the district court's resolution of his previous § 2255 motion, which raised an ineffective-assistance-of-counsel claim based on a similar argument", id. at 1023, or 2) "[a]lternatively, Nailor's Rule 60(b)(6) motion could be read to raise a new claim for relief". Id.
In Gonzalez, the Supreme Court reasoned that a Rule 60(b) motion that raises a claim, defined for purposes of § 2244(b) as "an asserted federal basis for relief from a state court's judgment of conviction, is, if not in substance a `habeas corpus application,' at least similar enough that failing to subject it to the same requirements would be `inconsistent with' the statute," Nailor, 487 F.3d at 1022 (citations omitted). That is not the case, however, when a 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. Id. The Nailor court states:
To be clear, we use the phrase "on the merits" in essentially the same way as did the Gonzalez Court:
The term "on the merits" has multiple usages. We refer here to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d). When a movant asserts one of those grounds (or asserts that a previous ruling regarding one of those grounds was in error), he is making a habeas corpus claim. He is not doing so when he merely asserts that a previous ruling which precluded a merits determination was in error-for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.
Gonzalez, 545 U.S. at 532 n. 4, 125 S.Ct. 2641 (internal citation omitted).Nailor, 487 F.3d at 1023 n. 2.
In his Rule 60(b) Motion, Cordell claims violations of his Fifth and Sixth Amendment rights. He asserts the Court's decision in his § 2255 Motion was defective and in error. He seeks relief based on newly discovered evidence. The Court concludes that Cordell seeks to revisit the Court's denial of his § 2255 motion on the merits.
Because Movant's Rule 60(b) motion qualifies as a second or successive § 2255 Motion, the Court finds it lacks jurisdiction to review the motion absent authorization from the United States Court of Appeals for the Sixth Circuit.
The Clerk of Court shall TRANSFER this case to the United States Court of Appeals for the Sixth Circuit under 28 U.S.C. § 1631 and In Re Sims, 111 F.3d 45, 47 (6th Cir. 1997).