Opinion
00 Civ. 2153 (LAK), (98 Crim. 76 (LAK)).
January 11, 2002
ORDER
Now before the Court is what movant Richard Gillette calls a "Motion for Reconsideration Pursuant to . . . Rule 59(e)." Gillette apparently asks the Court to alter or amend its December 4, 2001 order denying his Rule 60(b) motion for relief from the Court's July 7, 2000 order, which denied his Section 2255 motion. The present motion, although it invokes Rule 59(e), also might be construed as one to vacate the Court's July 7, 2000 order under Rule 60(b). Whether construed as invoking Rule 59(e) or Rule 60(b), Gillette's present motion fails to set forth grounds sufficient to upset either the December 4, 2001 order or the July 7, 2000 order.
Gillette's original Rule 60(b) motion was premised on the alleged discovery of new evidence that robbery proceeds for which he is responsible under a restitution order had been recovered by the United States Attorney's Office prior to his guilty plea and sentencing. The present motion seeks reconsideration based on the Court's failure to consider and/or grant Gillette's motion to withdraw his Section 2255 motion, which he mailed on June 25, 2000, and which the Court received on July 11, 2000, four days after the Court had denied the Section 2255 motion.
The present motion, if considered a Rule 59(e) motion, was timely filed within 10 days (excluding weekends) of entry of the December 4, 2001 order. It fails as a Rule 59(e) motion, however, because it relies on new facts and arguments not previously presented to the Court in the prior Rule 60(b) motion. There is no reason Gillette could not have included these facts and arguments in his previous Rule 60(b) motion, as he mailed the pertinent letter in June of 2000. Indeed, the present situation is an appropriate one in which to apply Rule 59(e) strictly to "`ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.'"
The primary new fact is the letter of June 25, 2000.
The new legal argument is that the Court should not have denied Gillette's request for withdrawal of the Section 2255 motion in light of the strictures placed on subsequent petitions by The Antiterrorism Effective Death Penalty Act (AEDPA), Pub.L. No. 104-32, Title I, § 105, 110 Stat. 1214, 1220 (1996) (codified at 28 U.S.C. § 2255). Cf. Adams v. United States, 155 F.3d 582, 583-84 (2d Cir. 1998) (in light of AEDPA, district court should not recharacterize a petition as one under Section 2255 unless (a) movant, with knowledge of potential adverse consequences, agrees to recharacterization, or (b) the court finds that motion should be considered a Section 2255 motion due to nature of relief sought, and court offers the movant the opportunity to withdraw the motion).
United States v. Eubanks, No. S7 92 Cr. 392 (PKL), 1999 WL 1261256, at *5 (S.D.N Y Dec. 27, 1999) (citing cases); 12 MOORE'S FEDERAL PRACTICE § 59.30[6], at 59-108 to 59-109 (3d ed. 2000) ("[A] motion to alter or amend may not be used to raise arguments, or to present evidence, that could reasonably have been raise or presented before the entry of judgment.").
Eubanks, 1999 WL 1261256, at *5 (quoting Paredes-Ravelo v. United States, No. 96 Civ. 3680, 1998 WL 185324, at *1 (S.D.N.Y. Apr. 17, 1998) (in turn quoting Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988))).
The present motion, if considered a Rule 60(b) motion for relief from the July 7, 2000 order dismissing Gillette's Section 2255 motion, is untimely. As a Rule 60(b) motion, the present motion charitably could be said to seek relief based on "mistake, inadvertence, surprise, or excusable neglect," "newly discovered evidence," or "fraud . . . or other misconduct of an adverse party." Rule 60(b) motions based on these grounds must be filed not more than 1 year after the order at issue was entered. Gillette's present motion, which he conveyed to prison officials no earlier than December 8, 2001, fails to meet this requirement with respect to the July 7, 2000 order.
FED. R. CIV. P. 60(b)(1) — (3).
For the foregoing reasons, the motion is denied.
SO ORDERED.