Opinion
No. 3:02-CV-1458-P and No. 3:84-CR-168-P
October 2, 2002
CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the United States District Court for the Northern District of Texas, Defendant's postjudgment motion in his criminal case has been referred to the United States Magistrate Judge. The conclusions and recommendation of the Magistrate Judge follow:
A. NATURE OF THE CASE
Bonnie Burnette Erwin, an inmate in federal custody, has filed a motion in his criminal case entitled "Status Request And/Or To Correct His Case."
B. PARTIES
Petitioner, Bonnie Burnette Erwin, has not named a respondent, and no process has been issued with respect to this postjudgment motion.
C. PROCEDURAL HISTORY
After Petitioner's drug conspiracy conviction was reversed and multiple additional drug, racketeering and tax convictions were affirmed on appeal ( 793 F.2d 656), Petitioner brought a motion pursuant to 28 U.S.C. § 2255, and the motion was denied. Defendant then moved to amend the judgment. The District Court amended the judgment, and Defendant appealed. The appeal was held in abeyance while the District Court considered and denied a subsequent motion for new trial. Defendant appealed. The Fifth Circuit Court of Appeals held that (1) failure to hold a resentencing hearing did not violated defendant's due process rights; (2) the three-year period in which to bring a motion for new trial based upon newly discovered evidence ran from the date of conviction, not the date on which the sentence was amended; (3) the law of the case doctrine barred redetermination of a jury instruction issue that had been raised in an earlier motion to vacate, and (4) Defendant's motion for new trial based on failure to provide defendant with a grand jury transcript was untimely. United States v. Erwin, 277 F.3d 727 (5th Cir. 2001).
D. LEGAL ANALYSIS
In his latest postjudgment filing, Petitioner seeks "a new trial or sentencing hearing under the rules in this case, to show that justice does support justice with proper relief." Petitioner argues "the district court erred in ruling that it was not required to conduct a new sentencing hearing prior to entering the amended judgment." This issue has been decided adversely to Petitioner by the Fifth Circuit Court of Appeals. United States v. Erwin, 277 F.3d at 731.
As authority for his motion, Petitioner cites Rule 10 of Appellate procedure. Appellate rules do not provide grounds for post-conviction relief in the District Court. Petitioner also relies upon Fed.R.Crim.Proc. 33, claiming this is a motion for new trial. Petitioner previously brought a motion for new trial which was denied as untimely and the denial was affirmed on appeal. Erwin, 277 F.3d at 732. The Fifth Circuit Court of Appeals held the time for filing a motion for new trial expired three years after Petitioner's 1984 conviction and that the time limits provided in Rule 33 are jurisdictional. Erwin, 277 F.3d at 732. Petitioner's attempt to bring this motion pursuant to Rule 33 is frivolous if not disingenuous.
Petitioner also relies upon Rule 60(b) of the Federal Rules of Civil Procedure. Assuming Petitioner can bring such a challenge in a Rule 60(b) motion, the amended judgment that was entered is correct and no reason exists, equitable or otherwise, for vacating the amended judgment and entering a second amended judgment. This motion, to the extent Petitioner relies upon Rule 60(b), should be summarily dismissed as frivolous.
Motions praying for the vacation of a criminal conviction rather than a civil judgment "are not ordinary Rule 60(b) motions." See United States v. Reyes, 945 F.2d 862, 864 (5th Cir. 1991). Courts may treat motions by federal prisoners to set aside their convictions on constitutional grounds, purportedly brought as Rule 60(b) motions, as § 2255 motions. United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998). If the Court were to treat Petitioner's Rule 60(b) motion as a § 2255 motion, it would be dismissed as a second or subsequent § 2255 motion brought without leave of the Fifth Circuit Court of Appeals.
Petitioner also relies upon Fed.R.Crim.P. 12(b)(1) and (2), claiming defects in the indictment shall be noticed by the court at any time during the pendency of the proceeding. This proceeding is no longer pending. Petitioner has exhausted his post-conviction remedies, and he has been afforded any and all relief to which he was entitled. The denial of further relief has been affirmed by the Fifth Circuit Court of Appeals in Petitioner's multiple appeals. Petitioner has presented no ground for the Court to award him postjudgment relief. This motion in which Petitioner attempts to use Fed.R.App.Proc. 10, Fed.R.Crim.Proc. 12 and 33, and Fed.R.Civ.Proc. 60(b) to reurge issues that previously have been decided against him should be summarily dismissed with prejudice.
RECOMMENDATION
Petitioner's "Status Request And/Or To Correct His Case," filed July 3, 2002, should be summarily dismissed with prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those parts of the conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, (1985). Additionally, any failure to file written objections to the proposed conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).