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United States District Court, S.D. New York

June 16, 2004.

HUGH EARLE, Petitioner,
U.S., Respondent.

The opinion of the court was delivered by: SIDNEY STEIN, District Judge


Hugh Earle brings this motion pursuant to Fed.R.Civ.P. 60(b) for reconsideration of this Court's 2002 denial of his petition for a writ of habeas corpus on the grounds that newly discovered evidence entitles him to relief from that order. Earle's petition for a writ of habeas corpus was initially denied on the grounds that it was untimely, procedurally barred and without merit. This motion for reconsideration is also denied because it is untimely and without merit.

I. Background

  In 1997, Earle pleaded guilty, pursuant to a cooperation agreement with the government, to a two count information alleging that he took part in a conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and a conspiracy to interfere with commerce by threats or violence in violation of 18 U.S.C. § 1951. He was sentenced by this Court in September 1998. The facts underlying that guilty plea and sentenced are set forth more fully in this Court's Memorandum Order, dated December 9, 2002, and familiarity with those facts is assumed for the purposes of this motion. Earle v. United States, 02 Civ. 432, 2002 WL 31770812 (S.D.N.Y. Dec. 11, 2002) ("Memorandum Order").

  Earle initially challenged his sentence in a habeas corpus petition brought pursuant to 28 U.S.C. § 2255 that was filed in January of 2002. In that petition, he alleged that (1) he was denied his Sixth Amendment right to effective assistance of counsel when his counsel failed to seek a downward departure, (2) the government's refusal to file a U.S. Sentencing Guidelines § 5K1.1 motion for a downward departure denied him due process because it violated his exercise of his Fifth Amendment right against self-incrimination, and (3) he was denied his right to due process by virtue of the government's bad faith refusal to file a section 5K1.1 motion.

  Earle's petition was denied on December 9, 2002 primarily because it was untimely; 28 U.S.C. § 2255 requires that petitions be filed within "the one year statute of limitations." Earle filed his petition in January 17, 2002 — almost two years after his conviction became final on March 10, 1999 — and he demonstrated no reason why the statute of limitations should be tolled. See Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).

  Additionally, this Court found that even if the petition had been timely, Earle was not entitled to relief on any of the three grounds asserted. First, Earle's ineffective assistance of counsel claim was procedurally barred because despite the fact that he had new counsel on appeal, he failed to raise that claim. See Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995). Second, the government was entitled to decide not to file a 5K1.1 motion for a downward departure because (1) the Fifth Amendment right against self-incrimination does not apply to cooperation agreements where candor is part of the bargain and (2) Earle violated the plea agreement by making false statements. See United States v. Brechner, 99 F.3d 96, 99-100 (2d Cir. 1996). Third, Earle failed to show that his attorney provided such constitutionally ineffective assistance so as to render the sentencing fundamentally unfair.

  Earle now moves this Court to reconsider that decision pursuant to Fed.R.Civ.P. 60(b) on the grounds of "newly discovered evidence." He introduces two items he claims constitute newly discovered evidence: (1) a car accident report (Pet. Exh. D) and (2) the report of a government agent who interviewed Earle about the whereabouts of that car in 1997. (Pet. Exh. C). He claims that this evidence establishes that the government misrepresented to the Court facts relating to its decision not to file a 5K1.1 motion for a downward departure at the time of sentencing.

  II. Discussion

  A. The Rule 60(b) Motion is Untimely

  A Rule 60(b) motion for reconsideration of a denial of a 28 U.S.C. § 2255 petition is not considered a second or successive habeas corpus petition. Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir. 2001). Earle brings this motion pro se, and therefore the pleadings are read liberally, and interpreted to "raise the strongest arguments they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

  Because Earle seeks to present new evidence, this motion for reconsideration falls within the provision of Fed.R.Civ.P. 60(b)(2), which permits a court to "relieve a party from a final judgment" on the grounds of "(2) newly discovered evidence which could not have been discovered in time to move for a new trial under Rule 59(b)." That motion must be made "within a reasonable time" and "not more than one year after the judgment . . ." Because Earle brings this Rule 60(b) motion more than one year after the December 2002 judgment that he seeks to challenge, it is untimely.

  The one-year time limitation set forth in Rule 60(b)(2) does not apply to motions for reconsideration brought pursuant to Rule 60(b)(6), for "any other reason justifying relief from the operation of the judgment." However, petitioner's motion clearly and explicitly seeks relief from judgment on the grounds of newly discovered evidence pursuant to Rule 60(b)(2). There is no reason why this motion should be exempted from that one-year limitation.

  B. The New Evidence Fails to Demonstrate Misstatements by the Government

  Even if Earle's motion for reconsideration were timely, and construing the motion with the liberality to be afforded pro se litigants, the new evidence presented does not entitle him to relief from the December 2002 determination. If this motion were considered one brought pursuant to Rule 60(b)(6) — which allows the court to set aside the order for "any other reason justifying relief from the operation of the judgment" and is not subject to a one-year time limitation — it would still fail because "[r]elief under Rule 60(b)(6) is appropriate only in cases presenting extraordinary circumstances," and this new evidence fails to raise any such circumstances. Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001) (internal quotation marks omitted).

  Earle's motion also fails if this Court construed this motion as one for relief from judgment on the grounds of a fraud upon the court, which is not subject to a specific time limitation. As set forth below, the new evidence fails to demonstrate that such a fraud was perpetrated. See Gleason v. Jandrucko, 860 F.2d 556, 558 (2d Cir. 1988) (holding that an "independent action" based upon "fraud upon the court" may be brought at any time).

  Earle presents the report of the government investigator who questioned him about the whereabouts of a Lexus automobile on December 10, 1997 — one week before that car was found in the Bronx, destroyed by fire. (Pet. Exh. C). The report indicates that when a government investigator questioned Earle about the Lexus, he responded that "during May 1997 he had an accident with the vehicle and it was deemed a total loss." A handwritten notation on the report states "On 10/28/97 this vehicle was seen in his own backyard." This report is not inconsistent with the government's representation in a letter submitted to the Court on March 9, 1998 in connection with sentencing that Earle lied "first by denying that the Lexus was stolen, and then by claiming he had not had possession of the vehicle since May 1997, when it was purportedly involved in an accident . . ." (Pet. Exh. A, p. 1). While the report provides less information than the government letter, it does not present any inconsistent information, nor does it indicate that the government made any misstatements in its letter.

  Earle presents the 1997 accident report to show that the stolen Lexus, registered in Earle's name, had indeed been involved in an accident, and that therefore the government knew he was not making a false statement when he told the investigator about that accident. (Pet. Exh. C). However, the fact that the Lexus was involved in an accident in May of 1997 does not undermine the government's contention that the car was seen in Earle's yard in October of 1997. The accident in May does not provide reason to doubt the government's contention that the same car was later seen in Earle's yard. In fact, the accident report indicates that the car only sustained some front-end damage in that accident, and therefore lends further support to the government's position that the car was not destroyed in May of 1997, as Earle had claimed to the government investigator. The government's decision not to file a section 5K1.1 letter rested on its belief that Earle had made false statements. That belief is supported in the investigator's report because the investigator saw the car in October in Earle's yard, and Earle subsequently told that investigator he had not seen the car since May of the same year. Therefore, the new evidence of the accident report does not provide any reason to question the government's representations at the time of sentencing.

  The new evidence fails to show that Earle is entitled to relief from this Court's denial in December 2002 of his section 2255 petition because (1) it does not present any reason why this Court should reconsider its determination that the petition was not timely filed, and (2) it does not indicate that the government misrepresented any facts to the Court.

  III. Conclusion

  Earle's motion for reconsideration is denied because it is untimely. Even were it not untimely, Earle failed to show any entitlement to relief from this Court's Memorandum Order of December 2002.



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