Settle, et al v. USA

Filing 48

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT, DENYING MOTION TO AMEND § 2255 MOTION AND DENYING MOTIONS TO PROCEED IN FORMA PAUPERIS. Signed by Judge James D. Todd on 3/20/17. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
MIKE SETTLE,
Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.

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No. 03-1167-JDT-egb

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT,
DENYING MOTION TO AMEND § 2255 MOTION AND
DENYING MOTIONS TO PROCEED IN FORMA PAUPERIS

The Movant, Mike Settle, filed a pro se motion pursuant to 28 U.S.C. § 2255. (ECF No. 1.)
The Court dismissed the motion as untimely and entered judgment. (ECF Nos. 5 & 6.) The Sixth
Circuit remanded for consideration of whether the motion was timely in light of the decision in Day
v. McDonough, 547 U.S. 198 (2006). Settle v. United States, No. 04-5916 (6th Cir. Aug. 11, 2006).
On remand, this Court again dismissed the § 2255 motion as untimely. (ECF No. 25.) The Sixth
Circuit subsequently denied a certificate of appealability. Settle v. United States, 07-5844 (6th Cir.
Feb. 1, 2008), cert. denied, 555 U.S. 1038 (2008). Settle has since filed several unsuccessful
motions in the Sixth Circuit seeking to further challenge his federal convictions, and three such
motions to file second or successive § 2255 motions are currently pending in the Court of Appeals.1

1

See In re Settle, No. 17-5040 (6th Cir. Jan. 13, 2017) (motion to file successive § 2255
motion, raising issue based on Johnson v. United States, 135 S. Ct. 2551 (2015)); In re Settle,
No. 16-6611 (6th Cir. Oct. 31, 2016) (motion to file successive § 2255 motion, raising issues of
ineffective assistance of counsel); In re Settle, No. 16-6609 (6th Cir. Oct. 31, 2016) (motion to
file successive § 2255 motion, raising issue under United States v. Booker, 543 U.S. 220 (2005)).

On March 28, 2016, Settle filed a motion for relief from judgment in this case pursuant to
Federal Rule of Civil Procedure 60(b). (ECF No. 67.) He alleges that in denying his § 2254 petition
as time barred, the Court erroneously found that the statutue of limitations was not tolled during the
pendency of his second state habeas petition because it was not “properly filed” under 28 U.S.C.
§ 2244(d)(2).
On May 2, 2016, Settle filed a motion for relief from judgment pursuant to Rule 60(b). (ECF
No. 41.) He contends that this Court failed to consider whether his trial counsel’s ineffective
assistance constituted cause for any procedural default of his claims. This appears to be the same
or similar to an issue that Settle raised in a prior motion to file a second or successive § 2255, which
was denied by the Sixth Circuit. In re Settle, No. 16-2536 (6th Cir. July 1, 2016).
Under Rule 60(b) “the court may relieve a party . . . from a final judgment, order, or
proceeding for the following reasons”:
(1)
(2)

(3)
(4)
(5)

(6)

mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule
59(b);
fraud . . . , misrepresentation, or misconduct by an opposing party;
the judgment is void;
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; or
any other reason that justifies relief.

“Relief under Rule 60(b) is circumscribed by public policy favoring finality of judgments and
termination of litigation.” Blue Diamond Coal Co. v. Trs. of UMWA Combined Benefit Fund, 249
F.3d 519, 524 (6th Cir. 2001). For that reason, “the party seeking relief under Rule 60(b) bears the
burden of establishing the grounds for such relief by clear and convincing evidence.” Sataym

2

Computer Servs., Ltd. v. Venture Global Eng’g, LLC, 323 F. App’x 421, 427 (6th Cir. 2009)
(quoting Info-Hold, Inc. v. Sound Merch., Inc., 538 F.3d 448, 454 (6th Cir. 2008)).
Settle asserts that his motions for relief from judgment are based on newly discovered
evidence. The mere fact that Settle did not think to raise these additional arguments until now does
not mean they are “new evidence.” Therefore, he is not entitled to relief under subsection (2) of
Rule 60(b).
Legal errors fall within the definition of “mistake” under Rule 60(b)(1). See Cacevic v. City
of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000). However, Rule 60(b) is not intended to allow
relief from judgment merely because Plaintiff is unhappy with the outcome. See Jinks v.
AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001). The Sixth Circuit, in denying leave to file a
successive motion on this issue, noted that the Supreme Court cases on which Settle relies are not
applicable to his federal conviction. In re Settle, No. 15-2536, at *2.
Subsection (b)(6), authorizing the Court to grant a Rule 60(b) motion for “any other reason
that justifies relief,” is to “be used only in exceptional or extraordinary circumstances” that are not
covered under subsections (1)-(5). Pierce v. United Mine Workers of Am. Welfare and Retirement
Fund for 1950 and 1974, 770 F.2d 449, 451 (6th Cir. 1985). “‘Exceptional circumstances’ under
Rule 60(b)(6) means ‘unusual or extreme situations where principles of equity mandate relief’ and
the party must show that absent relief, extreme and undue hardship will result.” United States v.
Real Prop. Known and Numbered as 429 S. Main St., New Lexington, Ohio, 960 F. Supp. 1155, 1160
(S.D. Ohio 1995) (quoting Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990)).
Settle’s circumstances do not present the type of “unusual or extreme situation” justifying relief
under Rule 60(b)(6).

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In addition, Settle’s Rule 60(b) motion was not timely filed. Rule 60 provides that “for
reasons (1), (2) and (3)” of Rule 60(b), a motion must be made “no more than a year after the entry
of the judgment or order or the date of the proceeding.” Rule 60(c)(1). Under the remaining
subsections, the motion must be made “within a reasonable time.” Id. The Court entered judgment
in this case on June 21, 2007, almost nine years before Settle filed the present Rule 60(b) motion.
Therefore, to the extent the motion is based on subsections (1) and (3), it is untimely. Even if the
motions are construed as having been brought under subsection (6), the Court finds that Settle’s Rule
60(b) motion was not filed within a reasonable time.
On October 17, 2016, Settle also filed a motion to amend the § 2255 motion. (ECF No. 44.)
He seeks to assert that his federal prosecution violated the Interstate Agreement on Detainers.
However, as the Court has denied relief from the judgment, the § 2255 motion may not be amended.
Therefore, the motion to amend is DENIED.
The motions to proceed in forma pauperis filed by Settle (ECF Nos. 42 & 45) are DENIED
as moot.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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