Helfant v. United States of America

Filing 14

ORDER denying 13 Motion for Relief Pursuant to Fed.R.Civ.Pro. Rule 60B. Signed by Judge William J. Zloch on 8/27/2009. (bc)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 09-60838-CIV-ZLOCH

HOWARD HELFANT, Movant, vs. UNITED STATES OF AMERICA, Respondent. / THIS MATTER is before the Court upon Movant Howard Helfant's Motion For Relief Pursuant To Fed.R.Civ.Pro. Rule 60B (DE 13). The Court has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises. By prior Orders, the Court denied Movant Howard Helfant's Motion To Vacate Sentence And Set Aside Guilty Plea By A Person In Federal Custody Under 28 U.S.C. § 2255 (DE 5) and Unopposed Motion For Reconsideration (DE 8). The factual and procedural history of ORDER

this action and the underlying criminal action have been previously stated and need not be repeated again. See DE 5, pp. 1-3.

Movant's original Motion (DE 1) was made on one ground only: Movant's conviction and sentence have worked a miscarriage of justice based on the fact that the Indictment against most of the other Defendants in the underlying criminal action has been

dismissed.

In its Order, the Court noted that Movant waived this See DE 5, p. 3, citing United States v.

ground by pleading guilty.

Broce, 488 U.S. 563, 569 (1989); United States v. Betancourth, 554

F.3d 1329, 1334 (11th Cir. Jan. 13, 2009); United States v. Kaiser, 893 F.2d 1300, 1302 (11th Cir. 1990). The previous Motion (DE 7) was styled as one for

reconsideration, governed by the Federal Rules of Civil Procedure to the extent they are not inconsistent with the Rules Governing Section 2255 Proceedings. Section 2255 Proceedings. See Rule 12 of the Rules Governing The Court previously explained that

Federal Rule of Civil Procedure 60(b) delineates the grounds on which a party may obtain relief from a court's order or judgment. Those grounds include mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misconduct by the

opposing party, or any other 60(b)(1)-(6).

just reason.

Fed. R. Civ. P.

None of these grounds were argued, and none was

patent in that Motion. The instant Motion (DE 13) reasserts the same ground raised in the Movant's previous Motion (DE 7), and it is one not argued in the first Motion (DE 1). Just as Movant's previous Motion For

Reconsideration (DE 7), the instant Motion is a successive motion under § 2255, and only the Court of Appeals can give Movant permission to file such a second or successive motion. of the Rules Governing Section 2255 Proceedings. Accordingly, after due consideration, it is ORDERED AND ADJUDGED that Movant Howard Helfant's Motion For Relief Pursuant To Fed.R.Civ.Pro. Rule 60B (DE 13) be and the same 2 See Rule 9

is hereby DENIED. DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 27th day of August, 2009.

WILLIAM J. ZLOCH United States District Judge Copies furnished: All Counsel of Record

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