Brown v. USA

Filing 57

MEMORANDUM AND ORDER re: 54 MOTION for Relief From Judgment Pursuant to Rule 60(b)(1) and (6) filed by Petitioner George E. Brown. IT IS HEREBY ORDERED that Brown's request for Relief from Judgment [#54] is DENIED. Signed by District Judge Catherine D. Perry on 11/30/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GEORGE E. BROWN,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:08 CV 182 CDP

MEMORANDUM AND ORDER
On November 8, 2010, I denied movant George Brown’s motion to vacate,
set aside, or correct his sentence under 28 U.S.C. § 2255, and I denied a certificate
of appealability in the same order. The Eighth Circuit Court of Appeals also
denied his request for a certificate of appealability. Brown then filed a “Motion
Under Rule 60(b),” arguing that I used an incorrect legal standard to evaluate his
claims when I denied his § 2255 motion. I found his Rule 60(b) Motion to be a
successive § 2255 motion and denied it on July 6, 2012. The Court of Appeals
affirmed that ruling and denied rehearing en banc. Brown has now filed for
“Relief from Judgment or Order under Rule 60(b)(1)(6) by Independent Action
Pursuant to Rule 60(d)(1).” He argues that the court misapplied the law and used
the incorrect legal standard, constituting a defect in the proceedings.

Brown’s motion must be denied for the same reasons I denied his
previously-filed motion under Rule 60. See ECF No. 44. Federal Rule of Civil
Procedure 60 provides relief from a prior judgment or order, but it cannot be used
to avoid the rule against successive habeas petitions and as a means to re-raise the
same claims. Because Brown’s Rule 60(b) motion was in fact a second or
successive § 2255 motion, and his requests for a certificate of appealability were
denied by this court and the Court of Appeals, I denied his motion. The request for
relief currently before the court also seeks to re-argue the same habeas claims. It is
therefore a successive § 2255 motion and will be denied.1
To the extent that Brown seeks to distinguish this motion by raising it under
Rule 60(d) instead of Rule 60(b), I find the distinction insignificant. Unlike his
first Rule 60 motion, Brown requests relief here in “an independent action2 to
relieve a party from a judgment, order, or proceeding” under Rule 60(d)(1). Rule
60(d) was added to the Federal Rules in 2007, but such relief was initially allowed
under the savings clause of Rule 60(b). Superior Seafoods, Inc. v. Tyson Foods,
1

Brown has filed at least one additional challenge to his conviction, attempting yet a different
procedural means to re-litigate the same issues. See Brown v. United States, 1:17 CV 103 RLW
(Order dated June 20, 2017, dismissing his application for a writ of coram nobis).
2
Brown’s pro se request for “Relief from Judgment or Order Under Rule 60(b)(1)(6) by
Independent Action Pursuant to Rule 60(d)(1)” was docketed under this civil case number and
not as a new civil case. His “Relief” request contains this civil case number in the caption and
the attached cover letter did not specify that the filing was intended to initiate a new case. ECF
Nos. 54, 54-1. However, the cover letter attached to Brown’s Reply in Support of his request
does state, “please be advised that I have noticed that this proceeding has not been docketed
under a new civil proceeding or case number, please explain why.” ECF No. 56-1 at 1.
Regardless of how Brown’s “Relief” request is docketed, my ruling here does not change.
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Inc., 620 F.3d 873, 878 (8th Cir. 2010). The Eighth Circuit has stated that the
indispensable elements for obtaining relief from a prior judgment under the savings
clause are:
(1) a judgment which ought not, in equity and good conscience, to be
enforced; (2) a good defense to the alleged cause of action on which the
judgment is founded; (3) fraud, accident, or mistake which prevented the
defendant in the judgment from obtaining the benefit of his defense; (4) the
absence of fault or negligence on the part of the defendant; and (5) the
absence of any adequate remedy at law.
Id. (quoting Nat’l Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir. 1903).
Furthermore, relief under Rule 60(d)(1) requires a showing that it would be
“manifestly unconscionable’ to enforce the judgment. Id. (quoting Griffin v. Fed.
Deposit Ins. Corp., 831 F.2d 799, 802 (8th Cir. 1987) (internal citations omitted)).
Brown has demonstrated none of the required elements for relief under Rule
60(d)(1), and nothing in this case indicates that it would be manifestly
unconscionable to allow the judgment to stand. Brown’s arguments concerning the
incorrect application of the law and the failure to follow the proper legal analysis,
by both this court and the Court of Appeals, are just another attempt to re-litigate
my evidentiary rulings and argue that he received ineffective assistance of counsel.
Because Brown has established none of the requirements justifying extraordinary
relief through an independent action and he has failed to receive authorization from
the Eighth Circuit Court of Appeals before filing this motion, his request will be
denied.
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Accordingly,
IT IS HEREBY ORDERED that Brown’s request for Relief from
Judgment [#54] is DENIED.

____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 30th day of November, 2017.

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