United States District Court, E.D. Tennessee, Knoxville Division
MEMORANDUM AND ORDER
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's Motion for
Relief from Judgment Pursuant to Rules 60(b)(1) and 60(b)(6)
[doc. 69]. The government has not responded, and the time for
a response has long passed. See E.D. Tenn. L.R.
7.1(a). For the reasons below, Petitioner's Rule 60(b)
motion [doc. 69] is DENIED.
2005, Petitioner pled guilty to three counts of possessing a
firearm as a felon, all in violation of 18 U.S.C.
§§ 922(g)(1). [Doc. 33]. Based on three prior
Florida robbery convictions, the United States Probation
Office classified Petitioner as an armed career criminal
subject to the Armed Career Criminal Act's
(“ACCA”) fifteen-year mandatory minimum sentence.
[Presentence Investigation Report (“PSR”)
¶¶ 19, 28, 32-33]. Based on this designation, the
Court sentenced Petitioner to 180 months' imprisonment on
January 17, 2006. [Doc. 33]. Petitioner appealed, but the
Sixth Circuit affirmed his convictions and sentences on April
3, 2007. [Doc. 38]. Petitioner did not seek a writ of
October 29, 2008, Petitioner filed a motion to vacate, set
aside, or correct his sentence. [Doc. 45]. This Court denied
that motion on February 28, 2012. [Docs. 50, 51]. Thereafter,
the Supreme Court issued its opinion in Johnson v. United
States, 135 S.Ct. 2551 (2015), holding that the residual
clause of the ACCA was unconstitutionally vague, on June 26,
2015. Petitioner requested leave to file a second or
successive § 2255 motion based on that decision. The
Sixth Circuit authorized a second or successive filing. [Doc.
November 2, 2016, Petitioner's second or successive
§ 2255 motion was filed in this Court, raising one
claim: that his ACCA-enhanced sentence was unconstitutional
in light of Johnson. [Doc. 57]. The Court ordered
the government to respond, and later granted an extension of
time, up to January 13, 2017, for the government to respond.
[Docs. 58, 60]. Before the government responded, the federal
public defender entered an appearance on behalf of
Petitioner. [Doc. 61]. On January 17, 2017, the government
responded in opposition to Petitioner's § 2255
motion. [Doc. 64]. The record indicates that, on February 16,
2017, the Court received a letter, addressed to
Petitioner's defense attorney, and the Court forwarded
the letter to the federal defender's office.
Court ultimately concluded that Florida robbery remains a
violent felony under the ACCA's use-of-physical-force
clause. [Doc. 65]. Accordingly, on April 10, 2017, the Court
denied Petitioner's § 2255 motion on the merits.
[Id.]. On May 1, 2017, Petitioner filed a
“reply” to the government's response to his
§ 2255 motion, as well as the instant Rule 60(b) motion.
[Docs. 68, 69].
instant Rule 60(b) motion, Petitioner asserts that the Clerk
of Court erroneously failed to file his letter, addressed to
his defense counsel, as a reply to the government's
response. [Doc. 69 at 2]. Petitioner further asserts that his
counsel's failure to file a timely reply in opposition to
the government's response was a denial of his procedural
due process rights. [Id.]. In support, Plaintiff has
attached a copy of the letter addressed to his defense
counsel, dated January 29, 2017, in which Petitioner informs
defense counsel that he has attached a reply to the
government, and asks counsel to edit the reply with any
additional arguments. [Id. at 7]. Alternatively,
Petitioner requested that counsel notify him if she could no
longer assist him, so that he could file the reply pro
se, or for counsel to submit the pro se reply
to the Court on his behalf. [Id.].
addition to the instant Rule 60(b) motion, Petitioner has
filed what appears to be the pro se reply brief that
he allegedly asked counsel to file on his behalf. [Doc. 68].
In his reply, Petitioner asserted that the
Fritts and Seabrooks decisions, on
which the government's response relied, were
distinguishable because those cases involved convictions for
armed robbery, as opposed to ordinary robbery. [Id.
at 2-3]. Petitioner further argued that, at the time of two
of his convictions, the least culpable act criminalized under
the Florida robbery statute was “robbery by sudden
snatching, ” which only qualified as a violent felony
under the ACCA's residual clause. [Id. at 5].
Rule of Civil Procedure 60(b) allows a court to relieve a
party from a final judgment for specific reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for