Opinion
No. 3-93-CR-377-G(01)
May 23, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Anthony Wayne Elrod, appearing pro se, has filed a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. For the reasons stated herein, the motion should be denied.
I.
Defendant pled guilty to two counts of arson and two counts of using fire to commit a felony. Punishment was assessed at 240 months confinement followed by supervised release for a period of three years. The district court also ordered restitution in the amount of $4,302,899.54. Defendant appealed. The court of appeals affirmed his conviction but remanded the case with instructions to determine the rate of restitution. United States v. Elrod, No. 94-10677 (5th Cir. Dec. 18, 1995). Defendant was resentenced and ordered to make restitution payments of at least $250.00 per month. He perfected another appeal, but escaped from custody shortly thereafter. The Fifth Circuit later dismissed the appeal at his request. United States v. Elrod, No. 96-10243 (5th Cir. Jun. 11, 1996). Defendant also filed a motion for post-conviction relief under 28 U.S.C. § 2255. The motion was denied following an evidentiary hearing. United States v. Elrod, No. 3-97-CV-0903-G (N.D. Tex. Jul. 7, 2000), COA denied, No. 00-10761 (5th Cir. Apr. 17, 2001), cert. denied, 122 S.Ct. 221 (2001).
Defendant was apprehended in Alberta, Canada on September 6, 1996 and extradited to the United States.
By this motion, defendant seeks relief from the judgment denying his section 2255 motion based on newly discovered evidence that the prosecutor breached the plea agreement by not providing his former wife, Kimberly Brown Elrod, with a letter of non-prosecution.
Alternatively, defendant seeks relief by way of audita querela. However, this form of relief is no longer available under the federal rules:
Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedures for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
FED. R. CIV. p. 60(b). See also United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993) (noting that "obsolescent" writ of audita querela does not survive as post-conviction remedy in light of 28 U.S.C. § 2255).
II.
A district court may grant relief from a final judgment "[o]n motion and upon such terms as are just . . ." FED. R. CIV. P. 60(b). These terms include newly discovered evidence, a void judgment, or a judgment that has been reversed or otherwise vacated. FED. R. Civ. P. 60%(2), (4) (5). The court may also set aside a judgment for "any other reason justifying relief from the operation of the judgment." FED. R. CIV. P. 60 (b)(6). However, relief under this catch-all provision is available "only if extraordinary circumstances are present." Hess v. Cockrell, 231 F.3d 212, 216 (5th Cir. 2001), quoting Bailey v. Ryan Stevedoring Co., Inc., 894 F.2d 157, 159 (5th Cir.), cert. denied, 111 S.Ct. 89 (1990).Defendant maintains that he learned for the first time at the evidentiary hearing on his section 2255 motion that the prosecutor failed to provide his former wife with a letter of non-prosecution. Assuming arguendo that this revelation constitutes "newly discovered evidence," defendant still is not entitled to relief under Rule 60(b). At the evidentiary hearing, the prosecutor candidly acknowledged that he agreed not to prosecute Kimberly Brown Elrod as part of the plea agreement. He honored that agreement. Whether or not the prosecutor provided a letter of nonprosecution is immaterial. Moreover, the Court previously found that Kimberly's potential criminal exposure was not "the motivating factor" in defendant's decision to plead guilty. Rather, "[defendant] pled guilty to reduce his sentence from more than 50 years to 20 years." Elrod, No. 3-97-CV-0903-G, FINDINGS REC. OF MAG. JUDGE at 6-7 (N.D. Tex. Jun. 26, 2000), adopted by ORDER (Jul. 7, 2000).
The Court finds it hard to believe that defendant did not know that his former wife never received a letter of non-prosecution until the evidentiary hearing on June 22, 2000. Defendant has been in near constant communication with Kimberly Brown Elrod throughout this case. In fact, Kimberly was present at the evidentiary hearing and submitted an affidavit in support of defendant's original motion for post-conviction relief.
Defendant has failed to establish any basis for vacating the judgment denying his section 2255 motion. Accordingly, he is not entitled to relief under Rule 60(b).
A pro se motion for relief from judgment under Rule 60(b) may be construed as a motion for post-conviction relief under 28 U.S.C. § 2255. See United States v. Rich, 141 F.3d 550, 552 (5th Cir. 1998). However, since defendant has already filed a section 2255 motion, he cannot file a second or successive motion with prior approval from a three-judge panel of the court of appeals. See 28 U.S.C. § 2255 2244(b)(1)-(3). Leave to file such a motion was denied by the Fifth Circuit on August 6, 2001. In re Elrod, No. 01-10734 (5th Cir. Aug. 6, 2001).