Foster v. USA

Filing 42

ORDER: Petitioner's 40 "Rule 60(d)(1) and (3) Motion to Vacate the October 28, 2013 Order Denying 2255 Relief Concerning Fraud, Misrepresentation or Misconduct of an Opposing Party" and the Petitioner's 41 "Motion for Post-Conviction Discovery Pursuant to Rule[ ] 6 of the Rules Governing Post-Conviction Discovery in §§2254/2255 Cases in the United States District Courts." are both DENIED. Signed by District Judge Martin Reidinger on 7/11/2019. (Pro se litigant served by US Mail.) (maf)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:12-cv-00315-MR
[CRIMINAL CASE NO. 1:09-cr-00013-MR-WCM-8]

KENNETH LEE FOSTER,

)
)
Petitioner,
)
)
vs.
)
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Petitioner’s “Rule 60(d)(1)
and (3) Motion to Vacate the October 28, 2013 Order Denying 2255 Relief
Concerning Fraud, Misrepresentation or Misconduct of an Opposing Party”
[Civil Case No. 1:12-cv-00315-MR (“CV”), CV Doc. 40]1 and the Petitioner’s
“Motion for Post-Conviction Discovery Pursuant to Rule[ ] 6 of the Rules
Governing Post-Conviction Discovery in §§2254/2255 Cases in the United
States District Courts” [CV Doc. 41].

Citations to the record herein contain the relevant document number referenced
preceded by either the letters “CV” denoting that the document is listed on the docket in
the civil case file number 1:12-cv-00315-MR, or the letters “CR” denoting that the
document is listed on the docket in the criminal case file number 1:09-cr-00013-MRWCM-8.
1

The Petitioner moves pursuant to Rule 60(d)(1) and (3) of the Federal
Rules of Civil Procedure for the Court to vacate its Order denying Petitioner’s
motion to vacate pursuant to 28 U.S.C. § 2255. [CV Doc. 41].
Rule 60(d)(1) allows the Court to “entertain an independent action to
relieve a party from a judgment, order, or proceeding.” Fed. R. Civ. P.
60(d)(1). This subdivision does not apply here, as the Petitioner has not filed
an independent action for relief, but rather has moved to have the Court’s
2013 Order vacated. Rule 60(d)(3) gives the Court the power to “set aside
a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3). Motions under
Rule 60(d) must be made “within a reasonable time” of discovery of the
alleged fraud. Apotex Corp. v. Merck & Co., Inc., 507 F.3d 1357, 1361 (Fed.
Cir. 2007). Further:
Fraud upon the court…requires rigorous proof, as do
other challenges to final judgment, lest the finality
established by Rule 60(b) be overwhelmed by
continuing attacks on the judgment…. Fraud upon
the court is typically limited to egregious events such
as bribery of a judge or juror or improper influence
exerted on the court, affecting the integrity of the
court and its ability to function impartially.
Id. (citations omitted).
As grounds for the instant motion, the Petitioner asserts that the
Assistant United States Attorney who represented the United States in the
underlying criminal action (the “AUSA”) committed a fraud on the court.
2

Namely, the Petitioner contends that the AUSA misrepresented to the Court
that certain documents necessary to obtaining a wiretap warrant had been
filed with this Court on March 3, 2009,2 when the documents3 were not
actually filed until March 11, 2010 in the context of Petitioner’s appeal from
his criminal judgment. [CV Doc. 40 at 4-7]. It is unclear from the record
when Petitioner contends this misrepresentation was made or under what
circumstance.

In any event, the record does not support Petitioner’s

assertion that the AUSA intentionally misled the Court regarding any
documents in support of the warrant. Further, the Fourth Circuit affirmed
Petitioner’s conviction and sentence after specifically addressing the issue
of whether the Court was supplied with “full and complete” information to
obtain the wiretap warrant as required by 18 U.S.C. § 2518(1). United States
v. Foster, 416 F. App’x 304, 309 (4th Cir. 2011) (unpublished decision).
Here, Petitioner filed his Rule 60(d) motion well more than five years
after the entry of the judgment he wants set aside and nearly five years after
the Fourth Circuit entered its mandate affirming the Court’s judgment. [See

The Court notes that the Government filed its Notice of Intent to Use Wiretap Evidence
in Court Proceedings on March 3, 2009. [CR Doc. 112]. No representations were made
in this filing regarding documents supporting the issuance of the wiretap warrant.
2

In his motion, Petitioner references an affidavit of Agent Guzzo and a Memorandum of
Authorization for Interception Application Order (“Memorandum”), although it is unclear
whether Petitioner contends the AUSA deceived the Court about the status of the filing of
both documents or only the Memorandum. [See Doc. 40 at 4, 7].
3

3

CV Docs. 17, 34]. Furthermore, the facts on which Petitioner purports to
base his motion have been known or knowable to him since before the
Fourth Circuit entered its mandate affirming the Petitioner’s conviction and
sentence on April 19, 2011. [See CR Doc. 595]. As such, Petitioner did not
bring this motion within a reasonable time of learning of any alleged fraud.
See Menashe v. Sutton, 90 F.Supp. 531, 533 (S.D.N.Y. 1950) (holding that
motion made 28 months after rendition of judgment on ground that the
judgment was procured by fraud on the court was untimely). As such, the
Court will deny Petitioner’s motion as untimely.
Furthermore, even if Petitioner’s motion had been timely filed,
Petitioner has shown no grounds to support a finding of fraud upon the court.
As such, Petitioner’s untimely motion for relief under Rule 60(d) is
unsupported in any event. Because Petitioner’s Rule 60(d) motion is denied,
Petitioner’s motion for post-conviction discovery will also be denied.
ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s “Rule 60(d)(1) and
(3) Motion to Vacate the October 28, 2013 Order Denying 2255 Relief
Concerning Fraud, Misrepresentation or Misconduct of an Opposing Party”
[CV Doc. 40] and the Petitioner’s “Motion for Post-Conviction Discovery
Pursuant to Rule[ ] 6 of the Rules Governing Post-Conviction Discovery in
4

§§2254/2255 Cases in the United States District Courts.” [CV Doc. 41] are
both DENIED.
IT IS SO ORDERED.
Signed: July 11, 2019

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