Opinion
CASE NO. 1:94-cr-00378.
July 23, 2008
OPINION ORDER [Resolving Docs. 330, 331, 336.]
Under Rule 60(b) of the Federal Rules of Civil Procedure, Defendant Sanford I. Atkin ("Atkin") moves this Court to vacate and set aside the verdict and judgment entered against him in this criminal case. [Doc. 330, 334.] Plaintiff United States of America ("the Government") opposes the Defendant's motion. [Doc.332, 335.] The Defendant also moves the Court to appoint him counsel for this proceeding [Doc. 331.] and to strike the Government's response to his second filing on this matter. [Doc.336.]
For the reasons stated below, the Court DENIES the Defendant's motion to vacate and set aside the verdict and judgment, DENIES the Defendant's motion to appoint counsel, and GRANTS the Defendant's motion to strike the Government's response to his second filing in this matter.
I. Background
The Court incorporates its summary of this case's background from its order denying Defendant Atkin's habeas petition:
In November 1994, a federal grand jury returned a twenty-nine count indictment against Defendant-Movant Atkin. The indictment charged Atkin with soliciting and receiving $550,000 from a defendant in a federal criminal trial by falsely representing that he would use the funds to bribe the federal judge presiding over the trial. The specific counts in the indictment ranged from obstruction of justice to income tax evasion.
In June 1995, a jury convicted Atkin on twenty-eight of the twenty-nine counts in the indictment. Thereafter, Atkin began serving a sixty-three month prison sentence in federal prison.
In September 1995, Atkin appealed his conviction to the United States Court of Appeals for the Sixth Circuit. In 1997, the Sixth Circuit affirmed Atkin's conviction.
Counts 1 and 2 charged Atkin with obstructing justice; Counts 3 through 9 charged Atkin with interstate transportation of property obtained by fraud; Counts 10 through 20 charged Atkin with engaging in monetary transactions with criminally derived funds; Count 21 charged Atkin with witness tampering; Counts 22 through 25 charged Atkin with income tax evasion; and Counts 26 through 29 charged Atkin with filing false income tax returns.
Atkin was acquitted of witness tampering.
[Doc. 265.] See also United States v. Atkin , 107 F.3d 1213 (6th Cir. 1997) (affirming conviction on direct appeal).
On February 12, 1998, Defendant Atkin petitioned the Court to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. [Doc. 213.] The case was subsequently reassigned from Judge David D. Dowd, Jr. to this Court on October 13, 1999. [Doc. 257.] On January 7, 2000, this Court denied Atkin's § 2255 petition. [Docs. 264, 265.] Atkin's related appeals to the Sixth Circuit and United States Supreme Court failed. E.g., [Docs. 253, 259, 262, 266, 276, 277, 281.] The Court references the docket for the various other motions Atkins has filed in this matter, in particular his attempts at release from detention and termination of supervised release. E.g., [Docs. 221, 282, 311, 317, 321.]
The Defendant filed the instant motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) on May 20, 2008, and following the submission of the Government's opposition, an additional brief in support of his motion on June 6, 2008. [Docs. 330, 334.] With his briefs, Defendant Atkin challenges his conviction by claiming that he is "actually innocent of any violation of law." He also says that the Government committed fraud throughout the proceedings and violated his due process rights by going forward with the trial when it knew Atkin to be innocent of some or all of the charges, by its failure to "disclose exculpatory evidence" to the Defendant before, during and after the trial, and by its presentation of perjured testimony at trial. [Docs. 330 at 1, 334 at 1-3.] The Government opposed the Defendant's motion on May 23, 2008, and filed a response to Atkin's second brief on June 13, 2008. [Docs. 332, 335.] The Government says that the Defendant's claim is procedurally barred and in the alternative, fails on the merits. [Docs. 332, 335.]
II. Discussion
Defendant Atkin says that the Court should vacate and set aside his verdict and judgment pursuant to Rule 60(b)(3) and 60(b)(6) of the Federal Rules of Civil Procedure. This Court disagrees.
Rule 60(b) establishes that "the court may relieve a party or its legal representative from a final judgment, order, or proceeding" in six situations. FED. R. CIV. P. 60(b). Rule 60(b)(3) grants courts authority to relieve a party from a judgment where "fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party" exists. FED. R. CIV. P. 60(b)(3). Rule 60(b)(6) further provides for relief from a judgment for "any other reason that justifies relief." FED. R. CIV. P. 60(b)(6).
However, Rule 60(b) only applies to civil actions; it does not apply to criminal cases. See United States v. Diaz , 79 Fed.Appx. 151, 152 (6th Cir. 2003); United States v. Charles , 37 Fed.Appx. 758, 758 (6th Cir. 2002). Rule 1 of the Federal Rules of Civil Procedure provides that these rules apply to " civil actions and proceedings." FED. R. CIV. P. 1 (emphasis added). The Federal Rules of Criminal Procedure govern criminal proceedings. FED. R. CRIM. P. 1. Simply put, Rule 60(b) does not provide relief from judgment in criminal cases. Thus, the Court cannot entertain the merits of Atkin's requested relief in his criminal case through this civil vehicle.
Nonetheless, a defendant may file a 60(b) motion related to his habeas corpus proceedings. However, even if the Court were to construe the Defendant's Rule 60(b) motion as one challenging his conviction through his habeas case, the motion would be inappropriate. Where a Rule 60(b) motion challenges the substance of the underlying conviction, rather than the integrity of the federal court's habeas proceedings, the motion will be considered a second or successive habeas petition. See Gonzalez v. Crosby , 545 U.S. 524, 531 (2005) (in the § 2254 habeas context, explaining that "[a] habeas petitioner's filing that seeks vindication of such a claim 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"); Mitchell v. Rees , 261 Fed.Appx. 825, 828 (6th Cir. 2008) (finding that a 60(b) motion should be considered a successive habeas petition if it challenges the judgment of conviction by "seek[ing] to add a new ground for relief," or "attack[ing] the federal court's previous resolution of a claim on the merits") (emphasis in original); United States v. Carter , 500 F.3d 486, 489 (6th Cir. 2007) (applying the Gonzalez rule in the § 2255 context).
One such defect that goes to the integrity of the habeas proceeding is an alleged fraud upon the habeas court. See Gonzalez , 545 U.S. at 532, n. 5. In the instant case, the Petitioner alleges that the Government committed fraud as to his underlying conviction, not specifically with regard to his habeas proceeding. Atkin introduces his motion by stating that he moves the Court to "vacate and set aside the verdict and judgment in the within matter . . . for the reasons that the Defendant is actually innocent" of the charges he was convicted of in 1995. [Doc. 330-1 at 1, 5.] Despite Atkin's repeated general references to fraud occurring before, during and after his trial throughout his reply, the Court finds these vague allegations insufficient to circumvent Gonzalez's rule that a Rule 60(b) motion challenging a petitioner's underlying conviction must be considered a successive habeas petition. In short, the Court finds that what Atkin is really challenging is his underlying conviction and the related proceedings, not his habeas proceeding in particular.
Moreover, to the extent Atkin's 60(b) motion alleges fraud, misrepresentation and misconduct on the part of the Government in the habeas proceeding, the motion must be treated as a 60(b)(3) motion, not a 60(b)(6) motion. See Mitchell v. Rees , 261 Fed.Appx. 825, 830 (6th Cir. 2008) ("[A] motion may not be brought under Rule 60(b)(6) if it is premised on one of the grounds for relief enumerated in clauses (b)(1) through (b)(5).") Therefore, Atkin's instant motion, filed on May 20, 2008, more than eight years following the Court's disposition of his habeas petition on January 7, 2000, is untimely under FED. R. CIV. P. 60(c)'s one-year time limitation. See Mitchell , 261 Fed.Appx. at 830 ("This time limit is jurisdictional, . . . and the district court does not have the discretion to extend the [one-year] period of limitation."); FED. R. CIV. P. 6(b)(2) ("A court must not extend the time to act under Rule . . . 60(b), except as [it] allow[s].").
Here, the Defendant moves this court to vacate and set aside the verdict and judgment entered against him based upon claims of actual innocence and fraud related to his various proceedings before, during and after trial. These grounds challenge his underlying conviction and sentence. Thus, under Gonzales, this Court construes the Defendant's motion as a successive habeas petition. However, under 28 U.S.C. § 2255(h), the Defendant must first present his motion to the Sixth Circuit Court of Appeals. The Defendant has not done so, and therefore, this Court may not review this motion as a successive habeas petition either.
As it appears that Atkin has likely concluded his terms of incarceration and supervised release, Atkin faces the additional challenge of needing to prove that he remains "in custody" for the purposes of filing a habeas petition. See United States v. Watroba , 56 F.3d 28, 29 (6th Cir. 1995) ("The plain language of § 2255 provides only prisoners who claim a right to be released from custody an avenue to challenge their sentences: 'A prisoner in custody under sentence of a [federal] court claiming the right to be released . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.' 28 U.S.C. § 2255.")
Also before this Court is the Defendant's motion to appoint counsel. Because Rule 60(B) motions may only be filed in civil proceedings, the Court analyzes this question in the context of civil proceedings. The appointment of counsel in a civil proceeding is generally not a constitutional right and is justified only by exceptional circumstances. Lavado v. Keohane , 992 F.2d 601, 604-06 (6th Cir. 1993); Lassiter v. Dep't of Social Serv. , 452 U.S. 18, 25 (1981) (finding that a constitutional right to counsel extends only to cases in which the defendant may be deprived of physical liberty). Here, where the Defendant has previously filed numerous challenges to his conviction and sentence throughout the duration of these proceedings, where the Defendant studied law and was once licensed to practice law, and where the Defendant faces the procedural bars described above, the Court finds appointment of counsel unnecessary.
Finally, the Court addresses the Defendant's motion to strike the Government's second brief. The Court construes the Defendant's initial motion as his initial brief, the Government's response as a brief in opposition, and the Defendant's response to the Government's brief as a reply brief. Thus, because the Government did not seek permission to file a sur-reply, the Court grants the Defendant's motion to strike the Government's second brief.
Because this Court does not have jurisdiction to reach the merits of the Defendant's claims, the Court also denies his request for an evidentiary hearing.
III. Conclusion
For these reasons, the Court DENIES Defendant's motion to vacate and set aside the verdict and judgment, DENIES the Defendant's motion to appoint counsel, and GRANTS the Defendant's motion to strike the Government's response to Atkin's second brief in this matter.
IT IS SO ORDERED.