Opinion
Civil Case No. 03-3437-SAC, Criminal Case No. 98-40079-02-SAC.
May 13, 2004
MEMORANDUM AND ORDER
On November 19, 2003, the court issued an order to show cause why the defendant's motion for relief pursuant to 28 U.S.C. § 2255 (Dk. 200) should not be dismissed as untimely. (Dk. 201).
The court directed the defendant to file his response within sixty days to avoid having his motion summarily dismissed. When the defendant filed no response by January 20, 2001, the court entered its order on February 12, 2004, finding that the defendant's § 2255 motion was not filed within the one-year limitations period and dismissing the defendant's motion as untimely. (Dk. 204)
Almost forty days after the response time set in the show cause order expired, the defendant filed a "Response" on March 1, 2004. (Dk. 205). The defendant writes that no one informed him of his right to file a motion for relief pursuant to 28 U.S.C. § 2255 within the one-year limitation period and that he did not learn of this right until he befriended a more knowledgeable inmate. The defendant further explains that he does not speak English and that an inmate misinterpreted the show cause order which caused the defendant to file his response late. On March 26, 2004, the defendant filed a pleading entitled, "Speedy Motion for Dismissal of Case Under Motion 2255 For Lack of Evidence and Admission of False Testimony." (Dk. 206).
Because the defendant's response (Dk. 205) was filed more than ten days after the court's entry of judgment (Case No. 03-3437, Dk. 1), the court treats the defendant's response as a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b). "Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances." Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990). "A litigant shows exceptional circumstances by satisfying one or more of Rule 60(b)'s six grounds." Van Skiver v. United States, 952 F.2d 1241, 1243-44 (1991), cert. denied, 506 U.S. 828 (1992).
The exceptional circumstances enumerated in Rule 60(b) are:
"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: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (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 defendant's motion does not identify by name any of the exceptional circumstances listed in Rule 60(b). When the movant is pro se, as here, a court will treat the motion as made under (b)(1) ("mistake, inadvertence, surprise, or excusable neglect") or (b)(6) ("any other reason justifying relief"). See Van Skiver, 952 F.2d at 1244. Nonetheless, the court does not find that the defendant's argued circumstances qualify as exceptional. The defendant has not shown that as an inmate he did not have access to reliable persons to translate the plain language appearing in the court's show cause order. Sixty days is an ample period of time to file a response or to request an extension.
The court further concludes that Gonzalez has failed to diligently pursue his claims and failed to demonstrate that his failure to file a timely § 2255 motion was caused by extraordinary circumstances beyond his control. The defendant does not advance any allegations that would warrant the application of equitable tolling in this case. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (equitable tolling of statute permitted in only rare and exceptional circumstances); United States v. Willis, 202 F.3d 1279, 1281 n. 3 (10th Cir. 2000) (case must present extraordinary circumstances to warrant equitable tolling of statute of limitations). The defendant's claimed lack of knowledge about his § 2255 remedy and the accompanying one-year statute of limitations is not an exceptional circumstance like actual innocence or other uncontrollable circumstances which keep a prisoner from timely pursuing his § 2255 remedy. "Simple excusable neglect is not sufficient. . . . Moreover, a petitioner must diligently pursue his federal habeas claims; a claim of insufficient access to relevant law, . . ., is not enough to support equitable tolling." Gibson v. Klinger, 232 F.3d at 808 (citations omitted).
As for the defendant's most recent filing entitled, "Speedy Motion for Dismissal of Case under Motion 2255," the court treats this filing as a second or successive § 2255 motion. Under 28 U.S.C. § 2244, a prisoner may not file a successive motion under § 2255 without first obtaining permission from the court of appeals. See Daniels v. United States, 254 F.3d 1180, 1188 (10th Cir. 2001). Therefore, this court is without jurisdiction to rule on this filing. See United States v. Avila-Avila, 132 F.3d 1347, 1348-49 (10th Cir. 1997).
IT IS THEREFORE ORDERED that the defendant's "Response" (Dk. 205) is treated as a Rule 60(b) motion and is denied;
IT IS FURTHER ORDERED that the defendant's "Speedy Motion" (Dk. 206) is treated as a successive § 2255 motion and is transferred to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631;
IT IS FURTHER ORDERED that the Clerk of the Court shall forward a copy of the defendant's motion (Dk. 206) to the Clerk of the Tenth Circuit Court of Appeals for processing under 28 U.S.C. § 2244(b)(3). The Clerk also shall send a copy of this Memorandum and Order to the defendant and the local office of the United States Attorney.