United States of America v. Muthara

Filing 66

MEMORANDUM AND ORDER denying 58 Motion for Relief from Judgment. Signed by District Judge Carlos Murguia on 4/22/2019. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v.
ERNEST NJAGI MUTHARA,
Defendant.

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Case No. 15-9091

MEMORANDUM AND ORDER
Plaintiff United States of America brought this denaturalization action, seeking to revoke and
set aside defendant Ernest Njagi Muthara’s citizenship and cancel his Certificate of Naturalization.
This court conducted a bench trial and entered judgment against defendant in January 2018. Defendant
appealed, and the Tenth Circuit affirmed the decision in November 2018. In January 2019, defendant
filed a Rule 60 Motion for Relief from Judgment (Doc. 58). Defendant claims that the judgment is
void because the statute of limitations had run before plaintiff filed its complaint. The court disagrees,
and denies defendant’s motion.
Defendant asks the court to set aside judgment on several overlapping bases: (1) under Rule
60(b)(4), because the statute of limitations barred the action, so the judgment is void; (2) under Rule
60(b)(6), because his counsel was ineffective for failing to raise the statute of limitations, as well as
other arguments at trial and on appeal; and (3) under Rule 60(b)(1), because counsel’s failure to raise
the statute of limitations was due to mistake, inadvertence, surprise, or excusable neglect.
First: Rule 60(b)(4) does not offer plaintiff relief because the judgment is not void. This case is
not barred by the statute of limitations. The court recently reaffirmed that the statute of limitations
does not apply in denaturalization actions, and nothing in Kokesh v. Securities & Exchange

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Commission, 137 S. Ct. 1635 (2017), changes that outcome. See United States v. Afak Malik, No. 159092-CM-TJJ, Doc. 203. The court hereby incorporates the rationale applied in Malik, and denies any
relief based on the statute of limitations.
Second: Rule 60(b)(6) does not offer relief for claims of ineffective assistance of counsel. “The
general rule in civil cases is that the ineffective assistance of counsel is not a basis for appeal or
retrial.” Nelson v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir. 2006) (citation omitted). “If a client’s
chosen counsel performs below professionally acceptable standards, with adverse effects on the
client’s case, the client’s remedy is not reversal, but rather a legal malpractice lawsuit against the
deficient attorney.” Id. (citation omitted); see also Beaudry v. Corr. Corp. of Am., 331 F.3d 1164,
1169 (10th Cir. 2003) (“Counsel’s performance, however deficient, would not . . . form the basis for
reversal of the trial court.”); Hudelson v. Cowdry, 3 F. App’x 845, 847 (10th Cir. 2001) (noting that
there is no constitutional right to effective assistance in civil cases; a plaintiff’s “remedy for any
alleged incompetence by his counsel is through a malpractice action against counsel, not through any
relief from the judgment in this case”). Although this rule has a narrow exception found in
immigration cases, the limited exception has been recognized in removal actions or deportation
proceedings in immigration court—not denaturalization actions. See, e.g. Osei v. Immigration &
Naturalization Serv., 305 F.3d 1205, 1208 (10th Cir. 2002). In any event, even if the court were to
consider the merits of defendant’s claims of ineffective assistance for counsel’s various decisions
before, during, and after trial, defendant has not established prejudice as required by Strickland v.
Washington, 466 U.S. 668, 685 (1984).
Third: Rule 60(b)(1) also does not provide relief. As noted above, this case is not barred by the
statute of limitations. And Rule 60(b)(1)’s offer of relief for mistake or excusable neglect does not
extend to alleged ineffective assistance. McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt, Inc.,

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298 F.3d 586, 593 (6th Cir. 2002); see also Rose v. Bonnet, 402 F. App’x 226, 228 (9th Cir. 2010)
(finding counsel’s calendaring mistakes and ignorance of the law in failing to file a timely opposition
to a motion did not establish valid grounds for relief under 60(b)(1) (citation omitted)); Aponte v. City
of N.Y. Dep’t of Corr., 377 F. App’x 99, 100 (2d Cir. 2010) (“The district court did not abuse its
discretion by denying Appellant’s Rule 60(b) motion for reconsideration because it was premised on
the legal malpractice of counsel and not the merits of the underlying litigation.”); Pelican Prod. Corp.
v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990) (“[C]arelessness by a litigant or his counsel does not
afford a basis for relief under Rule 60(b)(1).”). Defendant has not met his burden to plead and prove
mistake or excusable neglect such that the court should vacate judgment.
Defendant has not shown that he is entitled to relief under any provision of Rule 60(b).
IT IS THEREFORE ORDERED that defendant’s Rule 60 Motion for Relief from
Judgment (Doc. 58) is denied.
Dated this 22nd day of April, 2019, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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