Williams v. Bechtold

Filing 32

ORDER denying 29 Motion to Set Aside Judgment. Signed by Judge J. Randal Hall on 3/18/15. (cmr)

IN THE

UNITED

FOR THE

STATES

SOUTHERN DISTRICT OF
WAYCROSS

FRANKLIN L.

DISTRICT

COURT

GEORGIA

DIVISION

WILLIAMS,

*

Petitioner,

*
*

v.

*

CV 514-007

*

WILLIAM BECHTOLD,

Warden,

*

Respondent,

ORDER

Petitioner

filed

the

instant

motion

seeking

to

set

aside

the judgment against him under Federal Rule of Civil Procedure
(60) (b) (5) .

(Doc.

29.)

failed to provide

him

enhancement

sentence and that his

in his

Petitioner alleges that the Government

with notice of

its intent

to

seek an

counsel on appeal was

ineffective.

As a preliminary matter,

Petitioner's motion raises issues

strikingly similar to his previous motion to reopen and motion
for

reconsideration,1

which

were

denied.

(Docs.

23,

Petitioner has filed notices of appeal for each denial.

24, 30.)

The

(Docs.

As such, the Court seriously questions whether it has

jurisdiction to address Petitioner's motion.
1

28.)

allegations

are

ineffective assistance claim.

identical

with

the

Indeed,

exception

of

the

"[t]he
added

filing

of

a

notice

significance —

it

of

appeal

confers

is

an

event

of

jurisdiction on the

jurisdictional

court of

appeals

and divests the district court of its control over those aspects

of

the

case

Consumer

involved

Discount

Co.,

in

the

459

appeal."

U.S.

56,

Griggs

58

v.

(1982) .

Provident

As

such,

a

"district court retains only the authority to act in aid of the

appeal,

to correct clerical mistakes or aid in the execution of

a judgment that has not been superseded."
Channel,

Inc.

F.2d 711,

713

v.

Covered

(11th Cir.

Bridge

Condominium

Showtime/The Movie
Ass'n,

Inc.,

895

1990).

Even assuming this Court may hear Petitioner's motion with
the

notices

fail.
rule,

of

appeal

pending,

Petitioner's

claim

still

must

First, Defendant seeks relief under Rule 60(b),2 a civil
in

his

criminal

case.

However,

" [a]

defendant

cannot

challenge [criminal judgments] at issue under the Federal Rules
of

Civil Procedure."

1366 (11th Cir.
States v. Whisby,
have

2

held

that

1998)

United States v.

Mosavi,

138 F.3d 1365,

(emphasis in original); see also United

323 F. App'x 781, 782 (11th Cir. 2009)
Rule

60(b)

does

not

provide

relief

("[W]e
from

a

Rule 60(b)(5), which Petitioner cites as the basis for his

motion, provides relief only where "the judgment has been
satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable."
The Court fails to see
how this provision is applicable in the instant case.
Even
assuming Petitioner intended to invoke Rule 60(b)(4) - "the

judgment is void" - such a motion necessarily fails for the
reasons stated herein.

judgment

seeks

in a

to

criminal

attack

the

case.").

judgment

Thus,

under

to the extent Defendant

Rule

60,

such

a

claim

is

DENIED.

Even so,
label

of

a

cognizable
States

Here,

v.

xx[f]ederal courts are obligated to look beyond the
pro

se

a

under

inmate's

different

Stossel,

348

F.3d

motion

to

determine

statutory

1320,

1322

if

it

framework."
n.2

(11th

is

United

Cir.

2003).

Defendant attempts to argue that the judgment against him

was void.

Thus,

the only possible relief Defendant could seek

would be under 28 U.S.C.

§ 2255,

which covers claims of a "right

to be released upon the ground that the sentence was imposed in
violation

of

Petitioner

the

Constitution or

himself

conviction motions,

his

present

held,

the

appeals.

however,

jurisdiction
habeas

recognizes,

he

dismissal

The

of

has
of

the

filed a
which

Eleventh

United

number

form

Circuit

States."

the

has

second
unless

or
the

successive petition
petitioner

has

post

basis

for

clearly

for

lack of

for

a

obtained

authorizing the district court to consider it."

of

As

very

that a district court must "dismiss

a

corpus

laws

writ
an

of

order

Tompkins v.

Sec'y, Pep't of Corr., 557 F.3d 1257, 1258 (11th Cir. 2009).

No

such order has been issued.

Accordingly, and even assuming this

Court

light

appeal,

has

jurisdiction

the

Court

in

lacks

subject

of

the

matter

pending

notices

jurisdiction

of

over

Petitioner's motion for post-conviction relief.
stated herein,

Petitioner's motion (doc.

ORDER ENTERED at Augusta,
March,

29)

Georgia,

For the reasons

is DENIED.

this

/2r^

2015.

jE J.

RANDAL HALL

STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF GEORGIA

day

of