Opinion
Criminal Action No. 3:00CR-136-J.
February 6, 2009
MEMORANDUM OPINION AND ORDER
Following his conviction and sentence, Leon Stamper filed a petition pursuant to 28 U.S.C. Sec. 2255. On August 23, 2006, following an evidentiary hearing, the Court denied the petition. The mandate of the United States Court of Appeals for the Sixth Circuit issued on February 25, 2008, affirming this Court's judgment. On May 12, 2008, the Supreme Court of the United States denied Mr. Stamper's petition for a writ of certiorari. A month and a half thereafter (and almost two years after this Court's original judgment), Mr. Stamper filed the current motion to vacate judgment pursuant to Fed.R.Civ.P. 60(b)(6). The United States has not responded.
Mr. Stamper's argument is that the Court failed to address all claims raised in support of the Sec. 2255 petition. It would appear that such an argument should have been made pursuant to Fed.R.Civ.Pro. 59 motion to alter or amend judgment, but such a motion would have to have been presented in September of 2006, and no such motion was made.
Federal Rule of Civil Procedure Rule 60(b) sets out several bases for granting relief from a judgment. Of these explicit bases, the most appropriate would appear to be subsection (b)(1), under which Mr. Stamper might argue that his mistake, inadvertence or excusable neglect accounted for his missing the Rule 59(e) deadline. However, pursuant to subsection (c)(1), such a motion would have to have been presented before September of 2007. Thus, Mr. Stamper has elected to proceed under subsection (b)(6), the "catchall" applicable to "any other reason that justifies relief." Subsection (c)(1) requires that such a motion must be made "within a reasonable time." This Court is of the opinion that 22 months is not a reasonable time.
Any reason for Mr. Stamper to believe this Court failed to consider all arguments would have appeared no later than this Court's August 23, 2006 opinion. He did not raise his concerns at that time, nor were they raised when he appealed this Court's judgment, nor did he raise his concerns when he received the appellate court opinion in December of 2007. Accordingly, it appearing that the current motion was not timely filed,
IT IS ORDERED:
1. Petitioner Leon Stamper's motion to vacate is dismissed as not filed within a reasonable time.
2. Any appeal from this ruling would be frivolous and not in good faith.
This is a final order.