United States District Court, S.D. New York
February 7, 2005.
LEROY A. MOSES, a/k/a JAWAD AMIR MUSA, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge
OPINION & ORDER
By motion dated December 15, 2004, Leroy A. Moses ("Moses"),
also known as Jawad Amir Musa, moves, pursuant to Rule 60(b)(5)
and (6) of the Federal Rules of Civil Procedure, to vacate this
Court's Opinion and Order dated May 20, 1998, denying his habeas
petition under 28 U.S.C. § 2255. This motion is denied for the
reasons that follow.
In November 1990, a confidential informant ("CI") for the Drug
Enforcement Administration ("DEA") offered to sell one kilogram
of heroin to David Wray. Moses v. United States, No. 90 Cr. 863
(RPP), 1993 U.S. Dist. LEXIS 4962, at *2 (S.D.N.Y. Apr. 16,
1993). After negotiating with the CI, Wray agreed to pay $20,000
as a down payment for the heroin. Id. Through his personal
contacts, Wray eventually discussed the purchase with Moses, who
agreed to provide the $20,000 down payment. Id. Moses and the
other individuals involved in the conspiracy met the CI in
Manhattan on November 27, 1990, in order to complete the
transaction. Id. at *4. After the CI gave an arrest
signal, DEA agents arrested three of the individuals; Moses and
two others drove away but were later apprehended in Baltimore,
Maryland. Id. at *6.
On July 2, 1991, Moses was charged in a one-count indictment
for conspiracy to possess, with intent to distribute, one
kilogram or more of heroin, in violation of 21 U.S.C. § 846. On
July 18, 1991, following a jury trial, Moses was convicted of the
narcotics conspiracy charged in the indictment. The jury made no
findings with respect to the quantity of heroin involved in the
On December 11, 1992, the Court held a sentencing hearing
pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir.
1978), for the purpose of determining the quantity of heroin for
which Moses was liable. On April 16, 1993, the Court found "by a
preponderance of the evidence that defendant [Moses] knew that he
was engaging in a conspiracy to possess, with intent to
distribute, a kilogram of heroin." Moses, 1993 U.S. Dist. LEXIS
4962, at *7-8. Because Moses had two prior felony narcotics
convictions, this Court sentenced him to a mandatory term of life
imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). The Second
Circuit affirmed Moses's conviction and sentence. United States
v. Moses, 23 F.3d 396 (2d Cir. 1994).
On April 10, 1997, Moses filed a petition to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255, alleging
that (1) certain amendments to the Federal Sentencing Guidelines
required or permitted a reduction in his sentence; (2) both his
trial and appellate counsel rendered ineffective assistance; and
(3) the Government improperly withheld impeachment evidence
relevant to his defense. United States v. Moses, No. 97 Civ.
2833 (RPP), 1998 U.S. Dist. LEXIS 7343, at *7-31 (S.D.N.Y. May
20, 1998). On May 20, 1998, the Court denied Moses's § 2255
petition in its entirety and
declined to issue a certificate of appealability. Id. Moses
unsuccessfully appealed the Court's decision not to issue a
certificate of appealability.
On December 23, 2003, Moses, proceeding pro se, filed the
instant motion pursuant to Rule 60(b)(5) and (6) of the Federal
Rules of Civil Procedure.*fn1 On February 29, 2004, Moses
filed a motion for appointment of pro bono counsel, which the
Court denied. Moses v. United States, No. 97 Civ. 2833 (RPP),
2004 U.S. Dist. LEXIS 5157 (S.D.N.Y. Mar. 30, 2004). The
Government submitted a letter opposing the instant motion on
March 16, 2004. On April 12, 2004, Moses submitted his reply
memorandum of law, and on May 28, 2004, Moses's attorney filed a
supplemental reply memorandum of law with the Court's permission.
Moses filed a supplemental "Letter of Authority" on January 18,
Moses moves, pursuant to Rule 60(b)(5) and (6) of the Federal
Rules of Civil Procedure, to vacate the Court's denial of his §
2255 petition. Rule 60(b) states, in relevant part:
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: . . . (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 motion shall be made within a
Fed.R.Civ.P. 60(b). "[R]elief under Rule 60(b) is available
for a previous habeas proceeding only when the Rule 60(b) motion
attacks the integrity of the previous habeas proceeding rather
than the underlying criminal conviction." Harris v. United
States, 367 F.3d 74, 77 (2d Cir. 2004).
Moses argues that this Court should vacate its May 20, 1998
judgment denying his habeas petition made pursuant to
28 U.S.C. § 2255. (Moses's Memorandum in Support of Motion for Relief from
Judgment ("Moses's Mem.").) In denying Moses's § 2255 petition,
this Court determined that the Second Circuit's holding in
Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993)
procedurally barred two of Moses's four ineffective assistance of
counsel claims because he did not raise them on direct
appeal.*fn2 Moses, 1998 U.S. Dist. LEXIS 7343, at *13-16.
On April 23, 2003, the Supreme Court decided Massaro v. United
States, 538 U.S. 500 (2003), which abrogated Billy-Eko and
held that failure to bring an ineffective assistance of counsel
claim on direct appeal does not bar a petitioner from bringing an
ineffective assistance of counsel claim in a later, collateral
proceeding. For this reason, Moses claims that Massaro "creates
`extraordinary circumstances' warranting vacation of the
judgment."*fn3 (Moses's Mem. at 8.)
The Government opposes Moses's motion on three grounds.
(Government Letter in Opposition to Motion ("Gov't Ltr.").)
First, the Government states that the Court did not rely on
Billy-Eko when it rejected the ineffective assistance of
counsel claims contained in Moses's § 2255 petition. (Id. at
7-9.) Second, the Government argues that Rule 60(b)(6) relief is
available only in extraordinary circumstances where the judgment
would work extreme and undue hardship, and this is not such a
situation. (Id. at 9-10.) And third, the Government argues that
Moses's Rule 60(b) motion should be denied because he fails to
establish that his underlying claims are meritorious and that
vacating the judgment would not be an empty exercise. (Id. at
Before turning to Moses's claims pursuant to Rule 60(b)(5) and
(6), the Government's argument that this Court's § 2255 decision
did not rely on Billy-Eko when it rejected Moses's ineffective
assistance of counsel claims must be addressed. Moses's § 2255
petition raised four ineffective assistance of counsel claims.
Moses, 1998 U.S. Dist. LEXIS 7343, at * 12-23. In reviewing
Moses's first two ineffective assistance of counsel claims (1)
that his trial counsel failed to bring an amendment to the
Federal Sentencing Guidelines to the Sentencing Court's
attention; and (2) that his trial counsel failed to present a
sufficient argument that the mandatory minimums of
21 U.S.C. § 841 should not apply to the reverse sting involved in Moses's
case the Court determined that they were procedurally barred
under Billy-Eko. Id. at *13-17. However, the Court also
applied the Strickland standard to these two claims and denied
them on the merits. Id. The third and fourth claims were not
procedurally barred by Billy-Eko, but the Court dismissed each
of them on the merits.*fn4 Thus, despite denying on the
merits Moses's four
ineffective assistance of counsel claims, the Court applied the
procedural bar set forth in Billy-Eko to the first two claims.
A. Rule 60(b)(5)
Under Rule 60(b)(5), a party may be relieved from a judgment if
"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." Fed.R.Civ.P. 60(b)(5).
According to Moses, relief under Rule 60(b)(5) is appropriate
here because this Court's denial of his § 2255 petition was
"based" on the Second Circuit's decision in Billy-Eko, which
has since been abrogated by Massaro.
"Rule 60(b)(5) does not provide a basis for relief when one
judgment relies on an earlier judgment merely as legal precedent
and that legal precedent is subsequently set aside or overturned.
A change in the law following a judgment does not merit relief
under Rule 60(b)(5)." 12 Moore's Federal Practice § 60.46 at
60-154.1 (3d ed. 1997) (emphasis in original) (citing Lubben v.
Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 650 (1st
Cir. 1972) ("It is not sufficient that the prior judgment
provides only precedent for the decision."); Harris v. Martin,
834 F.2d 361, 364-65 (3d Cir. 1987) ("the `prior judgment' clause
of Rule 60(b)(5) `does not contemplate relief based merely upon
precedential evolution'") (citation omitted); Bailey v. Ryan
Stevedoring, Inc., 894 F.2d 157, 160 (5th Cir. 1990) ("It is not
sufficient that the prior judgment provides only precedent")
(citation omitted); Tomlin v. McDaniel, 865 F.2d 209, 211 (9th
(for relief to be justified, "[t]he relation between the present
judgment and the prior judgment must . . . be closer than that of
a later case relying on the precedent of an earlier case; the
fact that the prior case provides a precedent for the later one
is not sufficient") (citations omitted)). Thus, Moses's motion
pursuant to Rule 60(b)(5) cannot succeed because this Court's
reliance on Billy-Eko as legal precedent is not the type of
reliance that implicates Rule 60(b)(5).
B. Rule 60(b)(6)
Under Rule 60(b)(6), a court may grant relief from judgment if
there is "any other reason justifying relief from the operation
of the judgment." Fed.R.Civ.P. 60(b)(6). According to the
Second Circuit, "[A]n attack on the integrity of a previous
habeas proceeding using subsection (6) of Rule 60(b) is viable
only in `extraordinary circumstances.'" Harris, 367 F.3d at 77;
see also United States v. Cirami, 563 F.2d 26, 32 (2d Cir.
1977) ("[I]t is well established . . . that a `proper case' for
Rule 60(b)(6) relief is only one of `extraordinary circumstances'
or `extreme hardship.'") (citations omitted).
In general, changes in decisional law do not support relief
under Rule 60(b)(6). See Agostini v. Felton, 521 U.S. 203,
239 (1997) (observing that "[i]ntervening developments in the law
by themselves rarely constitute the extraordinary circumstances
required for relief under Rule 60(b)(6)"); see also DeWeerth
v. Baldinger, 38 F.3d 1266, 1272-74 (2d Cir. 1994); Travelers
Indem. Co. v. Sarkisian, 794 F.2d 754, 757 (2d Cir.), cert.
denied, 479 U.S. 885 (1986). However, Rule 60(b)(6) relief may
be appropriate in exceptional cases. As the Second Circuit stated
in Sargent v. Columbia Forest Prob., Inc., 75 F.3d 86 (2d Cir.
1996), a "supervening change in governing law that calls into
serious question the correctness of the court's judgment" may
constitute an extraordinary circumstance justifying relief. Id.
at 90 (citation omitted).
District courts in this circuit have granted Rule 60(b)(6)
motions to vacate dismissals of habeas petitions because of
intervening changes in law in limited circumstances. For example,
Rule 60(b)(6) relief has been available in cases where a habeas
petition was summarily dismissed as time-barred on the basis of
an interpretation of the Antiterrorism and Effective Death
Penalty Act of 1996 that the Second Circuit later rejected. See,
e.g., Reinoso v. Artuz, No. 97 Civ. 3174 (MGC), 1999 U.S.
Dist. LEXIS 7768 (S.D.N.Y. May 25, 1999); Tal v. Miller, No. 97
Civ. 2275 (JGK), 1999 U.S. Dist. LEXIS 652 (S.D.N.Y. Jan. 27,
1999); Matos v. Portuondo, 33 F. Supp. 2d 317 (S.D.N.Y. 1999).
Unlike those cases, however, Moses's petition was not summarily
dismissed. Instead, the Court conducted a thorough review of
Moses's ineffective assistance of counsel claims, even those that
were subject to the procedural bar established by Billy-Eko. In
doing so, this Court concluded that Moses's claims could not
succeed regardless of whether they were procedurally barred. For
this reason, the Court's denial of Moses's § 2255 petition does
not "work an extreme and undue hardship," nor are there
"extraordinary circumstances" that warrant relief under Rule
For the foregoing reasons, Moses's motion pursuant to Rule
60(b)(5) and (6) of the Federal Rules of Civil Procedure is
IT IS SO ORDERED.