United States District Court, M.D. Louisiana
MAGISTRATE JUDGE'S REPORT
STEPHEN C. RIEDLINGER, Magistrate Judge.
Before the court is the Motion to Reconsider, or Motion to Vacate Pursuant to Rule 60(b), 28 U.S.C. § 2255 filed by petitioner Charles R. Young. Record document number 65.
For the reasons which follow, the petitioner's motion should be denied as untimely.
I. Procedural History
On April 29, 2009, the petitioner pled guilty to one count Possession with Intent to Distribute Five Grams or More of Cocaine Base in violation of 21 U.S.C. § 841(a) (1). On October 7, 2009, the petitioner was sentenced to imprisonment for a term of 137 months.
Petitioner appealed, arguing that the sentence was procedurally and substantively unreasonable. Petitioner's sentence was affirmed on appeal. United States of America v. Charles R. Young, 383 Fed.Appx. 410 (5th Cir. 2010).
Petitioner signed his Motion to Reconsider, or Motion to Vacate Pursuant to Rule 60(b), 28 U.S.C. § 2255, on August 28, 2014, and it was filed on September 2, 2014. Petitioner brought his motion pursuant to Rule 60(b), Fed.R.Civ.P., and alternatively pursuant to 28 U.S.C. § 2255.
For the reasons set forth below, the petitioner's Motion to Reconsider, or Motion to Vacate Pursuant to Rule 60(b), 28 U.S.C. § 2255 should be dismissed as untimely.
II. Applicable Law and Analysis
A. Rule 60(b)
Petitioner argued that he is entitled to relief from judgment pursuant to Rule 60(b), Fed.R.Civ.P.,  based upon newly discovered evidence consisting of the True Extract of Criminal Court Minutes of criminal proceedings held in the matter of State of Louisiana v. Charles Young, No. 01-09-0372, before the Nineteenth Judicial District Court for the Parish of East Baton Rouge, Louisiana. Petitioner argued that the criminal court minutes establish that on August 29, 2013, he was found "not guilty" of two counts of second degree murder. Petitioner argued that the district judge relied on the arrest related to the second degree murder charges to enhance his sentence. Petitioner argued that in light of his acquittal on both second degree murder charges in 2013, his sentence should be reconsidered.
Rule 60(b), Fed.R.Civ.P., permits the district court to relieve a party from the effect of a final judgment for several reasons, including mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, release, satisfaction, and any other reason that justifies such disposition. The rule, provides in relevant part, as follows: "On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for [various] reasons, " including "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)." Rule 60(b) (2).
First, even if the petitioner had alleged facts sufficient to support a Rule 60 (b) (2) motion, it would be untimely because it was filed more than one year after entry of the judgment. A Rule 60(b) motion based on newly discovered evidence must be filed within one year of the entry of the judgment or order. Rule 60(c). Judgment was entered on October 27, 2009. Petitioner did not file his Rule 60(b) (2) motion until August 28, 2014, almost five years after the judgment was entered.
Second, the petitioner is not entitled to relief under Rule 60(b) (2). The records regarding the 2013 state court criminal proceedings did not exist at the time of the entry of the district court's judgment in October 2009. Rule 60(b) (2) does not provide relief for such evidence that did not exist before ...