Hodge v. United States

Filing 32

REPORT AND RECOMMENDATIONS on 28 USC 2255 case re 25 MOTION for Relief from Final Judgment Recommending this motion for relief from Judgement pursuant to Rule 60(b) be denied and alternatively dismissed as untimely, and the judgment denying his original §2255 stand. Objections to R&R due by 9/28/2009. Signed by Magistrate Judge Patrick A. White on 9/11/2009. (br)

SOUTHERN DISTRICT OF FLORIDA CASE NO. 03-20835-CIV-HUCK (00-1025-CR-HUCK) MAGISTRATE JUDGE P.A. WHITE ROCKLYN D. HODGE, Movant, v. UNITED STATES OF AMERICA, : : : : REPORT OF MAGISTRATE JUDGE (DE#25)

Respondent. : ______________________________ The pro-se petitioner, Rocklyn D. Hodge, filed a Motion to Set Aside Judgement pursuant to the Fed.R.Civ.P. 60(b). (DE#25). The motion was referred to the Undersigned Magistrate Judge on September 9, 2009. The petitioner was convicted of possession of a firearm by a convicted felon, following a jury trial. He alleges in his Rule 60(b) motion that the District Court failed to address his claim that counsel was ineffective for misadvising him of the sentencing exposure he faced if he proceeded to trial versus pleading guilty. Federal following Rule Civil for Procedure relief: 60(b) (1) provides in sum the

six

bases

mistake,

inadvertence,

surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason justifying relief from the operation of the judgment. The movant fails to establish relief pursuant to the Rule.

The

petitioner

filed

a

motion

to

vacate

attacking

his

conviction in case no. 00-1025-Cr-Huck. The motion, assigned case no. 03-20835-Civ-Huck was denied on October 15, 2003, adopting the Report and Recommendation of the Magistrate Judge. The Court of Appeals declined to issue a certificate of appealability based upon the petitioner's failure to demonstrate a constitutional violation, on March 10, 2004, Case No. 03-15903-J. Review of the petitioner's motion to vacate, and the Report of the Magistrate Judge entered in case no. 03-20835-civ-Huck reveals that the Report addressed the sole claim of ineffective counsel raised, failure to challenge the government's failure to abide by the terms of its stipulation concerning the movant's prior convictions, resulting in an enhanced sentence. The petitioner's claim that the District Court failed to discuss an issue raised in his motion to vacate is without merit. Further, Rule 60(b) requires that the motion be made within a reasonable time, not more than one year after the judgment was entered. This motion, filed on August 19, 2009, over five years after the denial of his motion to vacate, is clearly out of time. The movant clearly does not satisfy the requirements of Rule 60(b), because he has not demonstrated to this Court extraordinary circumstances that would justify relieving him from the effect of the final judgment. See United States v. Flores, 981 F.2d 231, 237 (5 Cir. 1993). The movant has failed to demonstrate a lack of integrity in the judicial proceedings. prevent a grave miscarriage of Thus, there is nothing in the record to indicate a need to correct a clear error or to justice. See United States v. Beggerly, 524 U.S. 38, 47 (1998). A motion for relief from judgment is an extraordinary remedy, and this Court should not reconsider 2

issues already examined because the movant is dissatisfied with the outcome of his case. It is therefore recommended that this motion for relief from Judgement pursuant to Rule 60(b) be denied and alternatively dismissed as untimely, and the judgment denying his original §2255 stand. (DE#25) Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report.

Dated this 11th day of September, 2009. ______________________________ UNITED STATES MAGISTRATE JUDGE cc: Rocklyn D. Hodge, Pro Se Reg. No. 61978-004 FCC-Coleman Address of Record Cynthia Wood, AUSA Attorney of record

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