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August 11, 2005.

JOHN EUBANKS, Petitioner,

The opinion of the court was delivered by: PETER LEISURE, District Judge


On December 11, 1992, a jury found John Eubanks ("petitioner") guilty of one count of conspiracy to distribute cocaine base, commonly known as "crack," in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). On February 1, 1994, this Court sentenced Eubanks to life imprisonment on the conspiracy count and a concurrent forty-year term of imprisonment on the possession count. In a Summary Order entered December 8, 1994, the United States Court of Appeals for the Second Circuit affirmed petitioner's conviction.

  On May 28, 1997, petitioner filed his first § 2255 motion seeking collateral review of his conviction. This Court denied that petition on August 11, 1998. See Eubanks v. United States, 11 F. Supp. 2d 455 (S.D.N.Y. 1998). Shortly thereafter, this Court denied petitioner's motion for reconsideration of the denial of his § 2255 petition. On August 10, 2000, the Second Circuit denied petitioner's application for a certificate of appealability. On June 18, 2001, petitioner filed an Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, pursuant to § 2255, based on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Second Circuit denied this motion by Order dated August 6, 2001.

  On November 25, 1996, petitioner filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. On July 16, 1997, this Court denied petitioner's Rule 33 motion, see United States v. Eubanks, Nos. S7 92 Cr. 392, 96 Civ. 2992, 1997 WL 401667 (S.D.N.Y. July 16, 1997), and on April 11, 2001, the Second Circuit affirmed the denial by Summary Order.

  The instant Opinion and Order addresses several pending motions that petitioner has filed seeking post-conviction relief. On September 27, 2002, petitioner filed a Motion to Vacate the Judgment of Denial of his § 2255 motion pursuant to Fed.R. Civ. P. 60(b)(5) and (6).*fn1 In addition, petitioner filed a Motion to Modify Sentence Pursuant to 18 U.S.C. § 3582(c)(2) on June 18, 2004. The Court addresses petitioner's claims in turn below.

  I. Petitioner's Rule 60(b) Motion

  Federal Rule of Civil Procedure 60(b) provides, in relevant part, that:
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 reasonable time. . . .
Fed.R.Civ.P. 60(b). In contrast to a § 2255 motion, a Rule 60(b) motion filed in the habeas context does not seek to set aside or vacate a sentence imposed by the federal court. A motion pursuant to Rule 60(b) only seeks to vacate the federal court judgment concerning the prior habeas petition. Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir. 2001). Relief under Rule 60(b) is therefore available with respect to a previous habeas proceeding only when the Rule 60(b) motion attacks the integrity of the habeas proceeding and not the underlying criminal conviction. Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004).

  Petitioner raises three arguments in his original and amended Rule 60(b) motion. First, petitioner claims that this Court should vacate the judgment of denial in his § 2255 motion based on the Second Circuit's decisions in United States v. Thomas, 274 F.3d 655 (2d Cir. 2001), and United States v. Guevara, 277 F.3d 111 (2d Cir. 2001). Petitioner argues that these cases directly overrule the legal interpretation on which the denial of his § 2255 motion was based. Second, petitioner contends that his counsel was constitutionally ineffective under the standard set forth by the Supreme Court in Wiggins v. Smith, 539 U.S. 510 (2003). Finally, petitioner argues that this Court either failed to consider two claims in his amended § 2255 motion or, alternatively, applied an incorrect legal standard to those claims based on the recent Supreme Court decision in Banks v. Dretke, 540 U.S. 668 (2004).

  A. Claims Based Upon Thomas and Guevara

  Petitioner claims that relief under Rule 60(b)(5) is appropriate here because this Court's denial of his § 2255 motion was based on "pre-Apprendi" case law that has since been abrogated in the Second Circuit by Thomas and Guevara. In Apprendi, the Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490. The Second Circuit thereafter concluded that Apprendi applied to the federal narcotics statute and held "that if the type and quantity of drugs involved in a charged crime may be used to impose a sentence above the statutory maximum for an indeterminate quantity of drugs, then the type and quantity of drugs is an element of the offense that must be charged in the indictment and submitted to the jury." See Thomas, 274 F.3d at 660. At trial, the jury convicted petitioner on both the conspiracy and possession counts without deciding the amount of narcotics involved, and the Court then sentenced him to life imprisonment based on a "conservatively estimated" figure of 26.1 kilograms of crack. See Eubanks v. United States, Nos. S7 92 Cr. 392, 96 Civ. 5883, 1996 WL 706934, at *1 (S.D.N.Y. Dec. 9, 1996).

  In his original § 2255 motion, petitioner raised this issue under an ineffective assistance of counsel theory. Specifically, petitioner argued that trial counsel unreasonably allowed sentencing to proceed with an inaccurate estimation of the amount of crack attributable to Eubanks. This Court found that trial counsel had in fact challenged the amount of crack attributable to Eubanks and that the Court had rejected that argument during sentencing. See Eubanks, 11 F.Supp.2d at 464. Petitioner did not raise any Apprendi-based challenges to his sentence in his initial § 2255 motion. As such, petitioner's Rule 60(b) motion can only be construed as an attack on the underlying conviction and sentence rather than the integrity of his original habeas proceeding. Courts, however, will only entertain a motion under Rule 60(b) if it relates to the integrity of the federal habeas proceeding, not the integrity of the criminal trial or sentencing. Compare Rodriguez, 252 F.3d at 199 (deciding a Rule 60(b) motion on its merits where petitioner alleged that his attorney made fraudulent representations to the habeas court) and Harris, 367 F.3d at 77 (deciding a Rule 60(b) motion on its merits where petitioner alleged ineffective counsel at the habeas proceeding) with Rodriguez v. United States, Nos. S2 90 Cr. 890, 97 Civ. 2545, 2005 WL 887142, at *6 (S.D.N.Y. Apr. 15, 2005) (Leisure, J.) (denying a Rule 60(b) motion that only attacked the underlying conviction) and Grullon v. United States, No. 99 Civ. 1877, 2004 WL 1900340, at *4 (S.D.N.Y. Aug. 24, 2004) (Keenan, J.) (refusing to review arguments made under Rule 60(b) that challenged the underlying conviction and sentence). As a result, petitioner's Rule 60(b)(5) claim based on Thomas and Guevara is denied.

  Even if petitioner had challenged his sentence in his initial § 2255 motion, he still could not avail himself of Rule 60(b)(5) under these circumstances. Rule 60(b)(5) has "very little application" and is "limited to cases in which the present judgment is based on the prior judgment in the sense of claim or issue preclusion." 11 Charles Alan Wright et al., Federal Practice and Procedure § 2863 (2d ed. 1995). While there is a dearth of relevant case law on this issue in the Second Circuit, other circuit courts have held that Rule 60(b)(5) does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another unrelated proceeding. See Bailey v. Ryan Stevedoring, Inc., 894 F.2d 157, 160 (5th Cir. 1990) (noting that Rule 60(b)(5) does not contemplate relief based merely upon precedential evolution); Tomlin v. McDaniel, 865 F.2d 209, 211 (9th Cir. 1989) (same); Harris v. Martin, 834 F.2d 361, 364-65 (3d Cir. 1987) (same); see also Moses v. United States, Nos. 90 Cr. 863, 97 Civ. 2833, 2005 WL 292976, at *3 (S.D.N.Y. Feb. 8, 2005) (citing Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 650 (1st Cir. 1972)).

  Furthermore, Rule 60(b)(5) motions must be made within a reasonable time. Fed.R.Civ.P. 60(b). In considering whether petitioner's Rule 60(b) motion was filed within a reasonable time, the Court "must scrutinize the particular circumstances of the case, and balance the interest in finality with the reasons for delay." Moses v. United States, Nos. 90 Cr. 863, 97 Civ. 2833, 2002 WL 31011864, at *2 (S.D.N.Y. Sept. 9, 2002). Petitioner's motion was filed more than four years after the denial of his original habeas petition on August 11, 1998, and approximately twenty-seven months after the Supreme Court handed down its decision in Apprendi on June 26, 2000. Such a delay, without excuse, will ordinarily result in the denial of a Rule 60(b) motion. Id.; see Warren v. Garvin, No. 97 Civ. 494117, 1999 WL 494117, at *6-7 (S.D.N.Y. July 13, 1999) (holding that a delay of twenty months is not reasonable under Rule 60(b)); Ford v. United States, Nos. 4:95 Cr. 016-A, 4:97 Civ. 1047, 2002 WL 83743, at *2 (N.D. Tex. Jan. 14, 2002) (holding that a Rule 60(b) motion was time-barred where defendant waited more than sixteen months after Apprendi before filing motion); Crosslin v. United States, Nos. 4:96 Cr. 0131-R, 4:99 Civ. 0447-R, 2001 WL 863616, at *2 (N.D. Tex. July 13, 2001) (finding Rule 60(b) motion time-barred because defendant waited ten months after Apprendi decision). Admittedly, the Second Circuit decided both Thomas and Guevara approximately nine months before petitioner filed the instant motion. However, this Court has already stated that the timeliness of a Rule 60(b) motion based on Thomas and Guevara shall be measured from the date that Apprendi was decided. See Moses, 2002 WL 31011864, at *3 n. 2. Because petitioner waited more than two years from the date of the Supreme Court's decision in Apprendi, his Rule 60(b)(5) claim was not made within a "reasonable time," and as such, may not be considered.

  Petitioner claims in the alternative that he is entitled to relief under Rule 60(b)(6), which allows the Court to "relieve a party or a party's legal representative from a final judgment, order, or proceeding for" any reason "justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). Rule 60(b)(6) "confers broad discretion on the trial court to grant relief when appropriate to accomplish justice and it constitutes a grand reservoir of equitable power to do justice in a particular case." Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004). However, the Second Circuit has interpreted Rule 60(b)(6) as justifying relief only in cases presenting "extraordinary circumstances" or when necessary to cure "an extreme and undue hardship." Id. For the reasons discussed above, petitioner's Rule 60(b)(6) motion also fails because it attacks the underlying conviction rather than the subsequent habeas ...

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