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.
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 ...