Ziglar v. United States of America (INMATE3)

Filing 88

MEMORANDUM OPINION AND ORDER denying Ziglar's 81 motion for relief, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 11/9/10. (djy, )

Ziglar v. United States of America (INMATE3)

Doc. 88

IN UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J O E CARROLL ZIGLAR P e titio n e r, vs. U N IT E D STATES OF AMERICA R e sp o n d e n t. ) ) ) ) ) ) ) ) ) )

C a s e No. 2:07-cv-632-MEF (W O - Do Not Publish)

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on Petitioner's Motion for Relief From Order D e n yin g Section §2255 Pursuant to Federal Rule of Civil Procedure 60(b) (Doc. # 81); R e sp o n d e n t's Response to Petitioner's Motion (Doc. # 84); and Petitioner's Reply Brief (D o c . # 87). For the reasons stated below, Petitioner's Motion is DENIED. F A C T U A L AND PROCEDURAL HISTORY O n September 8, 2005, a federal grand jury returned an indictment charging Ziglar w ith one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 9 2 2 (g )(1 ). Ziglar pled guilty to the charge in the indictment on January 27, 2006. On D e c e m b e r 18, 2006, the district court sentenced Ziglar as an armed career criminal to the m a n d a to ry minimum term of 180 months in prison. See 18 U.S.C. § 924(e). Judgment was e n te re d on December 19, 2006. Ziglar did not appeal his sentence. On July 6, 2007 Ziglar filed a pro se 28 U.S.C. § 2255 petition (the "Petition") 1

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alleging that his trial counsel was ineffective. (Doc. # 1). Ziglar argued, among other th in g s, that his counsel failed to bring his mental health problems to the Court's attention. Id . Habeas counsel was appointed for Ziglar, and on June 24, 2009, the Court held an e v id e n tia ry hearing on Ziglar's Petition. On August 18, 2009, the Magistrate Judge e n te re d her Recommendation that Ziglar's Petition should be denied. (Doc. # 52). This C o u rt adopted that Recommendation and overruled Ziglar's Objections. (Doc. # 64). Final Judgment was entered in this case on October 22, 2009. (Doc. # 65). Ziglar filed this Motion on August 25, 2010. (Doc. # 81). The Government filed a R e sp o n s e on September 24, 2010 (Doc. # 84), and Ziglar filed his Reply on October 7, 2 0 1 0 (Doc. # 87). In his Motion, Ziglar argues that he is entitled to relief from final ju d g m e n t based on newly discovered evidence regarding Ziglar's competency at the time o f his change of plea hearing. Ziglar argues that this information was known by the F e d e ra l Defender representing Ziglar, the Probation Officer ("PO"), and the Assistant U n ite d States Attorney (US Attorney), and that in keeping this information from the C o u rt, the Federal Defender, Probation Officer, and United States Attorney perpetrated a f ra u d on both Ziglar and the Court. LEGAL STANDARD Z ig la r has moved this Court for Relief pursuant to Fed. Rule of Civ. P. 60(b)(2), (3 ), and (6). Rule 60 allows the Court to grant Relief from a Judgment or Order in a very n a rro w set of circumstances. Rule 60(b)(2) encompasses circumstances in which there is

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"newly discovered evidence that, with reasonable diligence, could not have been d is c o v e re d in time to move for a new trial under Rule 59(b)." A motion made pursuant to 6 0 (b )(2 ) is an "extraordinary motion and the requirements of the rule must be strictly m e t." Waddell v. Hendry Cnty. Sheriff's Office, 329 F.3d 1300, 1309 (11th Cir. 2003). Rule 60(b)(3) permits relief when "fraud . . .misrepresentation, or misconduct by an o p p o sin g party" occurred. Rule 60(b)(6) allows a Judge to set aside an order or judgment b a s e d upon "any other reason that justifies relief." Rule 60(b)(6) is "an extraordinary re m e d y which may be invoked only upon a showing of exceptional circumstances." Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993). A Rule 60(b) motion must be filed within a reasonable time after the entry of the ju d g m e n t or order complained of. Fed. R. Civ. P. 60(b). When a motion for relief is m a d e pursuant to Rule 60(b)(1), (2), or (3), the motion must be made within one year of th e entry of the judgment or order.1 There is no argument that Ziglar's Motion is u n t i m e l y. DISCUSSION Z ig la r argues that he is entitled to relief from final judgment denying his habeas

The provisions of 28 U.S.C. § 2255, particularly those regarding the filing of s u c c e s s iv e petitions, may place further restrictions on a Rule 60(b) motion filed by a h a b e a s petitioner. See Gonzalez v. Crosby, 545 U.S. 524, 530 n3 (2005). But because Z ig la r's motion does not meet the standard required for relief under Rule 60(b), even w ith o u t additional restrictions, the Court will not consider the potential limitations created b y the habeas statute. 3

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petition on the basis of Rule 60(b)(2), (3), and (6). Each will be discussed in turn. A. Rule 60(b)(2): In order to be entitled to relief under Rule 60(b)(2), a movant must demonstrate th a t: (1) the evidence was newly discovered since the trial; (2) that the movant was d ilig e n t in discovering the new evidence; (3) the evidence is not merely cumulative or im p e a c h in g ; (4) the evidence is material; and (5) the evidence must be such that a new tria l would probably produce a different result. Waddell, 329 F.3d at 1309. Ziglar argues that he has found new evidence, with the help of his habeas counsel, th a t demonstrates he was incompetent during proceedings in the underlying criminal case. The new evidence is time sheets created by the attorney from the Federal Defenders' O f f ic e who represented Ziglar in Ziglar's prosecution for being a felon in possession of a f ire a rm . However, this new evidence is not material to the determination of whether or n o t Ziglar received effective assistance of counsel in the underlying criminal case. The tim e sheets do indicate that Ziglar's attorney was aware of, and concerned about, Ziglar's p o te n tia l mental health issues. (Doc. # 81, Ex. A). However, demonstrating that your a tto rn e y was aware of your mental health status is not determinative of whether or not th a t attorney provided effective assistance of counsel. Ziglar, therefore, has failed to s a tis f y the fourth and fifth prongs of the Rule 60(b)(2) standard set out above. F u rth e rm o re , Mr. Bethel, one of Ziglar's attorneys in the underlying criminal case, in d ic a te d in his affidavit filed with the Court on August 1, 2007 that he was aware of

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Ziglar's depression and suicidal tendencies during the time he represented Ziglar. (Doc. # 5 ¶ 4). Additionally, Mr. Bethel testified in the evidentiary hearing. Therefore, Ziglar is u n a b le to demonstrate that the evidence he discovered was either new or not cumulative, p ro n g s one and three of the standard set out above. B. Rule 60(b)(3): Z ig la r also argues that he is entitled to relief pursuant to Rule 60(b)(3) because the n e w ly discovered time sheets also prove that the Probation Officer ("PO") and Assistant U n ite d States Attorney ("US Attorney") assigned to the case were also aware of Ziglar's a lle g e d incompetency. "To obtain relief from a final judgment based upon fraud under R u le 60(b)(3), the moving party must prove by clear and convincing evidence that the a d v e rs e party obtained the verdict through fraud, misrepresentations, or other m isc o n d u c t." Waddell, 329 F.3d at 1309. The moving party must also demonstrate that th e conduct prevented him from fully presenting his case. Id. Even assuming that the new evidence does demonstrate such a conspiracy between th e PO and US Attorney, Ziglar has not indicated how such a conspiracy would have p re v e n te d him from presenting evidence regarding his ineffective assistance of counsel c la im . Therefore, Ziglar does not meet the standard required for relief under Rule 6 0 (b )(3). C. Rule 60(b)(6): T h e catch-all provision of Rule 60(b)(6) "applies only to cases that do not fall into

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any of the other categories listed in parts (1) - (5) of Rule 60(b)." BUC Int'l Corp. v. Int'l Y a c h t Council Ltd., 517 F.3d 1271, 1275 n3 (11th Cir. 2008). Therefore, the Court can c o n s id e r neither Ziglar's arguments regarding the discovery of new evidence nor re g a rd in g the alleged conspiracy between a PO and US Attorney when determining w h e th e r Ziglar is entitled to relief under 60(b)(6). The only other ground for relief Ziglar a lle g e s is that the Court denied his request to continue the June 24, 2009 evidentiary h e a rin g . Ziglar requested a continuance due to the unavailability of one of his witnesses. C h ie f Magistrate Judge Walker denied this request. According to Ziglar's Reply to his 6 0 (b ) Motion (Doc. # 87), the witness would have testified about Ziglar's mental c o n d itio n on the day of his plea hearing. However, Ziglar presents no circumstance that w o u ld have prevented him from raising this ground in his Objections to the Magistrate's R e c o m m e n d a tio n . See Gardner v. Martino, 563 F.3d 981, 992 (9 th Cir. 2009) (requiring a 6 0 (b )(6 ) movant to show circumstances beyond the movant's control that prevented tim e ly action to protect his interests). Therefore, Ziglar's Motion does not demonstrate th e exceptional circumstances required for relief under 60(b)(6) to be granted. For the foregoing reasons, Ziglar's Motion for Relief is DENIED. DONE this the 9th day of November, 2010.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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