United States District Court, S.D. New York
June 16, 2004.
HUGH EARLE, Petitioner,
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
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.
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.
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.
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
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
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
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.
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
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