Opinion
Nos. 90 Cr. 863 (RPP), 97 Civ. 2833 (RPP).
February 7, 2005
Leroy A. Moses, a/k/a Jawad Amir Musa, White Deer, PA.
David Samel, New York, NY, for Petitioner.
David N. Kelley, United States Attorney, Southern District of New York, Joon H. Kim, A.U.S.A., New York, NY, Counsel for Respondent.
OPINION ORDER
By motion dated December 15, 2004, Leroy A. Moses ("Moses"), also known as Jawad Amir Musa, moves, pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure, to vacate this Court's Opinion and Order dated May 20, 1998, denying his habeas petition under 28 U.S.C. § 2255. This motion is denied for the reasons that follow.
BACKGROUND
In November 1990, a confidential informant ("CI") for the Drug Enforcement Administration ("DEA") offered to sell one kilogram of heroin to David Wray. Moses v. United States, No. 90 Cr. 863 (RPP), 1993 U.S. Dist. LEXIS 4962, at *2 (S.D.N.Y. Apr. 16, 1993). After negotiating with the CI, Wray agreed to pay $20,000 as a down payment for the heroin. Id. Through his personal contacts, Wray eventually discussed the purchase with Moses, who agreed to provide the $20,000 down payment. Id. Moses and the other individuals involved in the conspiracy met the CI in Manhattan on November 27, 1990, in order to complete the transaction. Id. at *4. After the CI gave an arrest signal, DEA agents arrested three of the individuals; Moses and two others drove away but were later apprehended in Baltimore, Maryland. Id. at *6.
On July 2, 1991, Moses was charged in a one-count indictment for conspiracy to possess, with intent to distribute, one kilogram or more of heroin, in violation of 21 U.S.C. § 846. On July 18, 1991, following a jury trial, Moses was convicted of the narcotics conspiracy charged in the indictment. The jury made no findings with respect to the quantity of heroin involved in the conspiracy.
On December 11, 1992, the Court held a sentencing hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), for the purpose of determining the quantity of heroin for which Moses was liable. On April 16, 1993, the Court found "by a preponderance of the evidence that defendant [Moses] knew that he was engaging in a conspiracy to possess, with intent to distribute, a kilogram of heroin." Moses, 1993 U.S. Dist. LEXIS 4962, at *7-8. Because Moses had two prior felony narcotics convictions, this Court sentenced him to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). The Second Circuit affirmed Moses's conviction and sentence. United States v. Moses, 23 F.3d 396 (2d Cir. 1994).
On April 10, 1997, Moses filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that (1) certain amendments to the Federal Sentencing Guidelines required or permitted a reduction in his sentence; (2) both his trial and appellate counsel rendered ineffective assistance; and (3) the Government improperly withheld impeachment evidence relevant to his defense. United States v. Moses, No. 97 Civ. 2833 (RPP), 1998 U.S. Dist. LEXIS 7343, at *7-31 (S.D.N.Y. May 20, 1998). On May 20, 1998, the Court denied Moses's § 2255 petition in its entirety and declined to issue a certificate of appealability. Id. Moses unsuccessfully appealed the Court's decision not to issue a certificate of appealability.
On December 23, 2003, Moses, proceeding pro se, filed the instant motion pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure. On February 29, 2004, Moses filed a motion for appointment of pro bono counsel, which the Court denied. Moses v. United States, No. 97 Civ. 2833 (RPP), 2004 U.S. Dist. LEXIS 5157 (S.D.N.Y. Mar. 30, 2004). The Government submitted a letter opposing the instant motion on March 16, 2004. On April 12, 2004, Moses submitted his reply memorandum of law, and on May 28, 2004, Moses's attorney filed a supplemental reply memorandum of law with the Court's permission. Moses filed a supplemental "Letter of Authority" on January 18, 2005.
This motion is Moses's second Rule 60(b) motion. On February 25, 2002, Moses filed a motion pursuant to Rule 60(b) to vacate this Court's denial of his § 2255 petition in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). This Court denied the motion on September 6, 2002.Moses v. United States, No. 97 Civ. 2833 (RPP), 2002 U.S. Dist. LEXIS 16799 (S.D.N.Y. Sept. 6, 2002). On October 24, 2003, Moses filed an application for a certificate of appealability, which this Court initially denied but later granted upon a motion for reconsideration. Moses v. United States, No. 97 Civ. 2833 (RPP), 2003 U.S. Dist. LEXIS 21600 (S.D.N.Y. Dec. 3, 2003). The Second Circuit ultimately affirmed the denial of Moses's Rule 60(b) motion in a summary order. Moses v. United States, No. 03-2667, 2005 U.S. App. LEXIS 1162 (2d Cir. Jan. 24, 2005).
DISCUSSION
Moses moves, pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure, to vacate the Court's denial of his § 2255 petition. Rule 60(b) states, in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time.
Fed.R.Civ.P. 60(b). "[R]elief under Rule 60(b) is available for a previous habeas proceeding only when the Rule 60(b) motion attacks the integrity of the previous habeas proceeding rather than the underlying criminal conviction." Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004).
Moses argues that this Court should vacate its May 20, 1998 judgment denying his habeas petition made pursuant to 28 U.S.C. § 2255. (Moses's Memorandum in Support of Motion for Relief from Judgment ("Moses's Mem.").) In denying Moses's § 2255 petition, this Court determined that the Second Circuit's holding inBilly-Eko v. United States, 8 F.3d 111 (2d Cir. 1993) procedurally barred two of Moses's four ineffective assistance of counsel claims because he did not raise them on direct appeal. Moses, 1998 U.S. Dist. LEXIS 7343, at *13-16. On April 23, 2003, the Supreme Court decided Massaro v. United States, 538 U.S. 500 (2003), which abrogated Billy-Eko and held that failure to bring an ineffective assistance of counsel claim on direct appeal does not bar a petitioner from bringing an ineffective assistance of counsel claim in a later, collateral proceeding. For this reason, Moses claims that Massaro "creates `extraordinary circumstances' warranting vacation of the judgment." (Moses's Mem. at 8.)
Under Billy-Eko, a petitioner who did not bring an ineffective assistance of counsel claim on direct appeal could not raise the claim in a subsequent § 2255 proceeding unless he could establish both cause for the procedural defect and actual prejudice. See Billy-Eko, 8 F.3d at 114-16.
Moses also argues that this Court's denial of his § 2255 petition should be vacated because Massaro "is a postjudgment change in the law with retroactive application." Moses's Mem. at 5. Similarly, Moses submitted a Letter of Authority requesting that the Court consider the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005), with respect to the instant motion. (Moses's Letter of Authority at 1.)
The Government opposes Moses's motion on three grounds. (Government Letter in Opposition to Motion ("Gov't Ltr.").) First, the Government states that the Court did not rely onBilly-Eko when it rejected the ineffective assistance of counsel claims contained in Moses's § 2255 petition. (Id. at 7-9.) Second, the Government argues that Rule 60(b)(6) relief is available only in extraordinary circumstances where the judgment would work extreme and undue hardship, and this is not such a situation. (Id. at 9-10.) And third, the Government argues that Moses's Rule 60(b) motion should be denied because he fails to establish that his underlying claims are meritorious and that vacating the judgment would not be an empty exercise. (Id. at 10.)
Before turning to Moses's claims pursuant to Rule 60(b)(5) and (6), the Government's argument that this Court's § 2255 decision did not rely on Billy-Eko when it rejected Moses's ineffective assistance of counsel claims must be addressed. Moses's § 2255 petition raised four ineffective assistance of counsel claims.Moses, 1998 U.S. Dist. LEXIS 7343, at * 12-23. In reviewing Moses's first two ineffective assistance of counsel claims — (1) that his trial counsel failed to bring an amendment to the Federal Sentencing Guidelines to the Sentencing Court's attention; and (2) that his trial counsel failed to present a sufficient argument that the mandatory minimums of 21 U.S.C. § 841 should not apply to the reverse sting involved in Moses's case — the Court determined that they were procedurally barred under Billy-Eko. Id. at *13-17. However, the Court also applied the Strickland standard to these two claims and denied them on the merits. Id. The third and fourth claims were not procedurally barred by Billy-Eko, but the Court dismissed each of them on the merits. Thus, despite denying on the merits Moses's four ineffective assistance of counsel claims, the Court applied the procedural bar set forth in Billy-Eko to the first two claims.
These two claims were (1) that Moses's trial counsel rendered ineffective assistance by failing to investigate and present proof of evidence tampering by a DEA agent who testified at Moses's trial concerning his surveillance of the transaction leading to the arrest and seizure of evidence; and (2) that Moses's appellate counsel rendered ineffective assistance by failing to perfect a sufficient argument as to alleged violations of Moses's rights under the Speedy Trial Act, 18 U.S.C. § 3161(c)(2). This Court rejected both of these claims. See Moses, 1998 U.S. Dist. LEXIS 7343, at *17-23.
A. Rule 60(b)(5)
Under Rule 60(b)(5), a party may be relieved from a judgment if "a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." Fed.R.Civ.P. 60(b)(5). According to Moses, relief under Rule 60(b)(5) is appropriate here because this Court's denial of his § 2255 petition was "based" on the Second Circuit's decision in Billy-Eko, which has since been abrogated by Massaro.
"Rule 60(b)(5) does not provide a basis for relief when one judgment relies on an earlier judgment merely as legal precedent and that legal precedent is subsequently set aside or overturned. A change in the law following a judgment does not merit relief under Rule 60(b)(5)." 12 Moore's Federal Practice § 60.46[2] at 60-154.1 (3d ed. 1997) (emphasis in original) (citing Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 650 (1st Cir. 1972) ("It is not sufficient that the prior judgment provides only precedent for the decision."); Harris v. Martin, 834 F.2d 361, 364-65 (3d Cir. 1987) ("the `prior judgment' clause of Rule 60(b)(5) `does not contemplate relief based merely upon precedential evolution'") (citation omitted); Bailey v. Ryan Stevedoring, Inc., 894 F.2d 157, 160 (5th Cir. 1990) ("It is not sufficient that the prior judgment provides only precedent") (citation omitted); Tomlin v. McDaniel, 865 F.2d 209, 211 (9th Cir. 1989) (for relief to be justified, "[t]he relation between the present judgment and the prior judgment must . . . be closer than that of a later case relying on the precedent of an earlier case; the fact that the prior case provides a precedent for the later one is not sufficient") (citations omitted)). Thus, Moses's motion pursuant to Rule 60(b)(5) cannot succeed because this Court's reliance on Billy-Eko as legal precedent is not the type of reliance that implicates Rule 60(b)(5).
B. Rule 60(b)(6)
Under Rule 60(b)(6), a court may grant relief from judgment if there is "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). According to the Second Circuit, "[A]n attack on the integrity of a previous habeas proceeding using subsection (6) of Rule 60(b) is viable only in `extraordinary circumstances.'" Harris, 367 F.3d at 77;see also United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977) ("[I]t is well established . . . that a `proper case' for Rule 60(b)(6) relief is only one of `extraordinary circumstances' or `extreme hardship.'") (citations omitted).
In general, changes in decisional law do not support relief under Rule 60(b)(6). See Agostini v. Felton, 521 U.S. 203, 239 (1997) (observing that "[i]ntervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)"); see also DeWeerth v. Baldinger, 38 F.3d 1266, 1272-74 (2d Cir. 1994); Travelers Indem. Co. v. Sarkisian, 794 F.2d 754, 757 (2d Cir.), cert. denied, 479 U.S. 885 (1986). However, Rule 60(b)(6) relief may be appropriate in exceptional cases. As the Second Circuit stated in Sargent v. Columbia Forest Prob., Inc., 75 F.3d 86 (2d Cir. 1996), a "supervening change in governing law that calls into serious question the correctness of the court's judgment" may constitute an extraordinary circumstance justifying relief. Id. at 90 (citation omitted).
District courts in this circuit have granted Rule 60(b)(6) motions to vacate dismissals of habeas petitions because of intervening changes in law in limited circumstances. For example, Rule 60(b)(6) relief has been available in cases where a habeas petition was summarily dismissed as time-barred on the basis of an interpretation of the Antiterrorism and Effective Death Penalty Act of 1996 that the Second Circuit later rejected. See, e.g., Reinoso v. Artuz, No. 97 Civ. 3174 (MGC), 1999 U.S. Dist. LEXIS 7768 (S.D.N.Y. May 25, 1999); Tal v. Miller, No. 97 Civ. 2275 (JGK), 1999 U.S. Dist. LEXIS 652 (S.D.N.Y. Jan. 27, 1999); Matos v. Portuondo, 33 F. Supp. 2d 317 (S.D.N.Y. 1999). Unlike those cases, however, Moses's petition was not summarily dismissed. Instead, the Court conducted a thorough review of Moses's ineffective assistance of counsel claims, even those that were subject to the procedural bar established by Billy-Eko. In doing so, this Court concluded that Moses's claims could not succeed regardless of whether they were procedurally barred. For this reason, the Court's denial of Moses's § 2255 petition does not "work an extreme and undue hardship," nor are there "extraordinary circumstances" that warrant relief under Rule 60(b)(6).
CONCLUSION
For the foregoing reasons, Moses's motion pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure is denied.
IT IS SO ORDERED.