McCreary v. United States of America
Filing
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ORDER DENYING petitioner's motion for reconsideration (doc. 16). Signed by Judge Frederick J Martone on 5/16/11.(KMG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Derrick L. McCreary,
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Petitioner,
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vs.
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United States of America,
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Respondent.
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No. CV 09-1023-PHX-FJM
CR 04-313-03-PHX-FJM
ORDER
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The court has before it petitioner's motion for reconsideration (doc. 16) and
respondent's amended response (doc. 20). Petitioner did not file a reply.
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On December 29, 2009, we issued an order accepting the magistrate judge's
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recommendation that we deny petitioner's motion to vacate, set aside, or correct the sentence
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pursuant to 28 U.S.C. § 2255 (doc. 14). We also denied a Certificate of Appealability.
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Petitioner now requests reconsideration and relief from that judgment under Rule 60(b)(6),
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Fed.R.Civ.P. He contends once again that count five of his superseding indictment failed to
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charge a federal crime or offense under 18 U.S.C. § 924(c)(1)(A) and that he was denied
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effective assistance of counsel. Petitioner already raised these objections in his § 2255
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motion and we rejected them. We rejected petitioner's claims concerning count five because
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he defaulted on them when he did not raise them on direct appeal. We rejected the
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ineffective assistance of counsel claim because counsel was not ineffective and even if he
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was, petitioner failed to show that he was prejudiced by any alleged failure of counsel.
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Petitioner does not raise any new arguments in this motion for reconsideration that have not
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already been considered and denied.
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Accordingly, IT IS ORDERED DENYING petitioner's motion for reconsideration
(doc. 16).
DATED this 16th day of May, 2011.
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