Williams v. Warden F.S.L. Jesup, GA

Filing 23

ORDER denying 21 Motion to Set Aside Judgment under Rule 60(b)(2). Signed by Judge Lisa G. Wood on 6/30/2017. (ca)

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FRANKLIN L. WILLIAMS,
Petitioner,

CIVIL ACTION NO.: 5:15-cv-63

V.

WARDEN F.S.L. JESUP, GA,

Respondent.

ORDER

Presently before the Court is Petitioner Franklin Williams'
(^^Williams") Rule 60(b)(2) Motion.

Dkt. No. 21.

For the

reasons which follow, the Court DENIES Williams' Motion.
This Court dismissed Williams' 28 U.S.C. § 2241 Petition on

June 17, 2016.

Dkt. No. 12.

Since that time, Williams has

filed an appeal with the Eleventh Circuit Court of Appeals.
Dkt. No. 13.

This Court and the Eleventh Circuit have denied

Williams' Motions to Proceed in Forma Pauperis on Appeal.
Nos. 18, 19.

Dkt.

Williams, who is nothing if not stubbornly

persistent, has filed the instant Motion pursuant to Federal
Rule of Civil Procedure 60(b)(2).

A0 72A

(Rev. 8/82)

According to Williams, the attorney who represented him
during the criminal proceedings in this Court and in his state

habeas proceedings was his retained counsel to whom Williams
paid $27,000.00 for representation.

Dkt. No. 21, pp. 2-3.

Williams asserts he tried to contact his attorney regarding the

direct appeal for his criminal proceedings in order to obtain a

copy of the Eleventh Circuit's decision.

Id. at p. 4.

Williams

contends, when he finally received a copy of the appellate
decision, he discovered the Eleventh Circuit ^Mid not rule on

the whole appeal."

Id. at p. 5.

Williams also contends his

appellate attorney would not provide copies of his case file so
that Williams could pursue other avenues of relief.
Williams attached to his Motion a copy of this docket sheet

and an excerpt from the Eleventh Circuit's determination on his
direct appeal.

He maintains he discovered on September 16,

2016, that his retained counsel had submitted a voucher for

payment through the Criminal Justice Act {"^CJA") in 2007, even
though he did not request an appointed attorney.

Id. at p. 7.

According to Plaintiff, the discovery of this information

clearly indicates he is entitled to relief due to the fraud his

attorney committed.^
^

Id.

Plaintiff has moved the Court pursuant to Rule 60(b)(2), on which

the Court bases its determination. However, in the body of his
Motion, he indicates his attorney committed fraud and misconduct.

Dkt. No. 21, pp. 1, 7-9.

Such allegations would ordinarily fall under

Rule 60(b)(3) (relieving a party from a final judgment or order for

Rule 60(b) permits a district court to ^'relieve a party or
its legal representative from a final judgment, order, or

proceeding for," among other things, ^^newly discovered evidence
that, with reasonable diligence, could not have been discovered
in time to move" for relief under Rule 59(b).

60(b)(2).

Fed. R. Civ. P.

This newly discovered evidence ^^must be sufficiently

material so as to alter the previous judgment."

Whitmire v.

Georgia, No. 2:09-CV-0218, 2010 WL 1489975, at *1 (N.D. Ga. Apr.

13, 2010) (citing Liquidation Common of Banco Intercontinental,
S.A. V. Renta, 530 F.3d 1339, 1358 (11th Cir. 2008)).

A Rule

60(b)(2) motion is an extraordinary motion, and ^^the

requirements of the rule must be strictly met."

Toole v. Baxter

Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000).

''"For

the court to grant relief based upon newly discovered evidence
under Rule 60(b)(2), a movant must meet a five-part test: (1)

the evidence must be newly discovered since the trial; (2) due

diligence on the part of the movant to discover the new evidence
must be shown; (3) the evidence must not be merely cumulative or

impeaching; (4) the evidence must be material; and (5) the
evidence must be such that a new trial would probably produce a
new result."

Williams v. Darden, No. CV 411-213, 2016 WL

^^fraud . . ., misrepresentation, or misconduct by an opposing party")
By its very terms. Rule 60(b)(3) does not apply, as Williams does not
allege the Government engaged in fraud, misrepresentation, or
misconduct.

Williams is advised that this is not an invitation to

once again file a wholly frivolous motion in this closed case or to
assert such claims via an original petition.

6139926, at *1 n.2 (S.D. Ga. Oct. 21, 2016) (internal citations
omitted).

Williams has not met any of the requirements showing he is
entitled to relief pursuant to Rule 60(b)(2).

First and

foremost, Williams' assertion that he did not learn of his

attorney's alleged fraud until September 16, 2016, is completely
lacking in credibility.

Williams has used excerpts from the

Eleventh Circuit's opinion in his direct appeal as attachments

to his voluminous filings with this Court well before September
2016.

See, e.g.. Pet., Williams v. Bechtold, 5:14-cv-7 (S.D.

Ga. Jan. 13, 2014), ECF No. 1, p. 8.

Additionally, even if this

Court were to consider this ''evidence" to be newly-discovered.

Plaintiff would not have shown due diligence in discovering this
evidence.

Williams' own filings reveal that this Court issued a

CJA appointment to appellate counsel on April 26, 2007, dkt. no.
21-5, p. 1, and that the Eleventh Circuit issued Williams'
attorney a CJA appointment of counsel letter on June 29, 2007,
dkt. no. 21-6, p. 3.

This information has been readily

accessible through this Court's and the Eleventh Circuit's
records since those times.

Accepting Williams' assertion as

true that he learned of this information in September 2016,

Williams has failed to provide any explanation as to how he
could not have discovered this information in the more than nine

years' time which elapsed from the time the CJA letters were

issued and his discovery of this information.

Further, this

^"evidence" is cumulative of assertions Williams has made

repeatedly regarding his appellate counsel's assistance.
Finally, not only is this "evidence" not material, it certainly
is not "sufficiently material so as to alter" the Court's

judgment in this case or in Williams' criminal case. Case Number
5:06-cr-14.

For all of these reasons, the Court DENIES Williams'
Motion.

SO ORDERED, this

*3 O

day of

vava-a

LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN

DISTRICT OF GEORGIA

, 2017.