Barbary v. United States of America
ORDER denying 17 Motion to Vacate. Signed by Judge Robert N. Scola, Jr on 9/5/2017. (vmz)
United States District Court
Southern District of Florida
Andre D. Barbary, Movant,
United States of America,
Civil Action No. 16-62087-Civ-Scola
ORDER ON RULE 60(b) MOTION TO VACATE
Barbary requests that the Court vacate its order adopting Magistrate
Judge White’s report and recommendation that Barbary’s § 2255 motion was
untimely (ECF No. 17.) The Government opposes the request. (ECF No. 18.) For
the reasons set forth below, Barbary’s motion to vacate is denied.
Barbary filed his § 2255 motion on September 4, 2016 (ECF No. 1). ON
October 4, 2016 Judge White issued his report, recommending that the Court
deny Barbary’s motion (ECF No. 6). Specifically, Judge White found that
Barbary’s motion was untimely, and thus, that Barbary was not entitled to
relief. (Id. at 1, 7.) Barbary filed objections on October 21, 2016, (Objs., ECF
No. 7), in which he argued that the time for filing the § 2255 motion should
have been tolled. The Court determined that Barbary failed to make an
adequate showing and was therefore not entitled to equitable tolling, and
accordingly overruled his objections, adopted Judge White’s report, and denied
the § 2255 motion. (ECF No. 8.)
Thereafter, Barbary filed a Rule 59(e) motion (ECF No. 10), asking the
Court to alter or amend its judgment, arguing for the first time that his Petition
for Writ of Certiorari Rehearing was actually a “cross-petition” of his codefendants’ petitions for writ of certiorari. (Mot. at 2, ECF No. 10.) The Court
denied the motion because Barbary did not present any ground to support
alteration of its order adopting the report. (ECF No. 13.)
In the instant motion, Barbary attempts to argue once again, pursuant to
Rule 60(b)(6) of the Federal Rules of Civil Procedure, that his § 2255 motion
2. Legal Standard
Pursuant to Rule 60, the Court may grant relief from a judgment or order
based upon, among other factors, “mistake, inadvertence, surprise, or
excusable neglect; . . . or any other reason that justifies relief.” See Fed. R. Civ.
P. 60(b)(1), (6). “By its very nature, the rule seeks to strike a delicate balance
between two countervailing impulses: the desire to preserve the finality of
judgments and the ‘incessant command of the court’s conscience that justice
be done in light of all the facts.’” Seven Elves, Inc. v. Eskenazi, 635 F.2d 396,
401 (5th Cir.1981)1 (quoting Bankers Mortg. Co. v. United States, 423 F.2d 73,
77 (5th Cir.1970)).
“It is well established, . . . that relief under Rule 60(b)(6) is an
extraordinary remedy which may be invoked only upon a showing of
exceptional circumstances.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680
(11th Cir. 1984) (internal citation and quotations omitted); see also Frederick v.
Kirby Tankships, Inc., 205 F. 3d 1277, 1288 (11th Cir. 2000) (“Federal courts
grant relief under Rule 60(b)(6) only for extraordinary circumstances.”). “Rule
60(b)(6) motions must demonstrate that the circumstances are sufficiently
extraordinary to warrant relief.” Aldana v. Del Monte Fresh Produce, N.A., Inc.,
741 F.3d 1349, 1355 (11th Cir. 2014) (internal quotations and citations
omitted). Whether to grant relief pursuant to Rule 60(b) is ultimately a matter
of discretion. Id. (citing Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006)
(internal citation and quotations omitted)).
Barbary’s Rule 60 motion is yet another attempt to circumvent the
applicable statute of limitations. In his motion, Barbary argues, for the first
time, that the Court should have construed his Rule 33 motion for a new trial
as a § 2255 motion because he is a pro se litigant, and his filings should be
liberally construed. However, the Court previously rejected Barbary’s attempts
to re-characterize his motions, when it denied his Rule 59(e) motion. Even
though Rule 33 and § 2255 motions overlap to a certain extent, the Court
declines to adopt a position in this case, or in any other, that would require it
to construe a Rule 33 motion as a timely § 2255 motion in the circumstances
that a petitioner’s actual § 2255 motion is filed after the one-year statute of
limitations imposed by AEDPA. See Barnes v. United States, 437 F.3d 1074,
1080 (11th Cir. 2006) (finding that notwithstanding “the potential pitfalls of
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981), the
Eleventh Circuit adopted as binding precedent former Fifth Circuit decisions
handed down prior to September 30, 1981.
permitting similar or identical claims to be pursued in Rule 33 and § 2255
motions,  we concluded that the system, as it has been set forth by Congress,
is adequately dealt with by the district courts. The standards for granting relief
. . . are quite different, but the filing deadlines for each are, and for the time
being remain, independent of one another.”) (internal citation omitted).
Contrary to Barbary’s assertion, Francis v. United States, 615 F. App’x 218, 218
(5th Cir. 2015), does not stand for the proposition that any post-appeal
collateral challenge is presumptively a § 2255 motion. In fact, Francis states
only that § 2255 is the main vehicle through which to raise a collateral
challenge to a federal sentence. Id. (citing Tolliver v. Dobre, 211 F.3d 876, 877
(5th Cir. 2000).
Barbary next asks the Court to stack assumption upon assumption, and
in reading his Rule 33 motion properly as a § 2255 motion, urges the Court to
find that his otherwise untimely § 2255 motion should have been construed as
an amendment of his timely re-characterized § 2255 motion. However, because
the Court declines to re-characterize Barbary’s Rule 33 motion as a § 2255
motion in the first instance, the Court need not consider the merits of this
The procedural history of this case remains unchanged—Barbary failed
to timely file a motion to vacate his sentence, and has not made a showing of
sufficiently “extraordinary circumstances” to justify granting relief pursuant to
Rule 60(b)(6). Accordingly, Barbary’s motion (ECF No. 17) is denied.
Done and ordered in chambers, at Miami, Florida, on September 5,
Robert N. Scola, Jr.
United States District Judge
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