United States v. George

Full title: UNITED STATES OF AMERICA, Plaintiff, v. RANDOLPH GEORGE, Defendant

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Date published: Mar 9, 2012

No. CR-01-0326 MMC (N.D. Cal. Mar. 9, 2012)

Opinion

No. CR-01-0326 MMC

03-09-2012

UNITED STATES OF AMERICA, Plaintiff, v. RANDOLPH GEORGE, Defendant

MAXINE M. CHESNEY

ORDER DENYING DEFENDANT'S MOTION FOR RELIEF FROM

JUDGMENT; DENYING AS MOOT DEFENDANT'S MOTION FOR

PERMISSION TO E-FILE; DENYING CERTIFICATE OF APPEALABILITY

The Court is in receipt of defendant Randolph George's "Motion for Relief from Judgement Pursuant to FRCP 60(b)," filed March 6, 2012, by which filing defendant seeks reconsideration of the Court's November 18, 2008 order denying his claim, made under 28 U.S.C. § 2255, that his conviction should be set aside because of ineffective assistance of trial counsel. Having read and considered the motion, the Court hereby rules as follows.¹

1 Defendant's motion for permission to file further documents electronically is hereby DENIED as moot; no further filings are necessary in this closed case.

First, to the extent the motion seeks relief pursuant to Rule 60(b)(1), the motion is DENIED because it is untimely. See Fed. R. Civ. P. 60(c)(1) (providing motion seeking relief under Rule 60(b)(1) must be filed "no more than a year after the entry of the judgment or the order").

Second, to the extent the motion seeks relief pursuant to Rule 60(b)(6), the motion is DENIED because defendant fails to identify any cognizable "reason that justifies relief." See Fed. R. Civ. P. 60(b)(6). Defendant's argument, that the Court erred in finding he failed to offer evidence to demonstrate he relied on the advice of others, is foreclosed by the Ninth Circuit's decision affirming the Court's November 18, 2008 order. Specifically, in response to defendant's argument that there was evidence to support a "defense of good-faith reliance upon tax advice," the Ninth Circuit, after reviewing the record before this Court, responded: "There is none." See United States v. George, 411 Fed. Appx. 31, 33 (9th Cir. 2010). Moreover, even if this Court were not bound by the Ninth Circuit's decision, the instant motion nonetheless fails because George again fails to identify any evidence to support a finding that he actually acted upon advice purportedly given to him by his tax accountants and/or others.

Lastly, to the extent defendant may seek to appeal the instant order, a certificate of appealability is hereby DENIED, for the reason defendant has not made a "substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

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MAXINE M. CHESNEY

United States District Judge