United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE
the Court is Jenee Lynn Hargrave's pro se Motion
for Relief from Judgment Pursuant to Rule 60 of the Federal
Rules of Criminal Procedure (Rec. Doc. 536), subsequently
re-styled, through appointed counsel, as Motion to Vacate
Conviction and Sentence Pursuant to 28 U.S.C. §2255
(Rec. Doc. 567). The Government filed a Response. (Rec. Doc.
583). The Motion was referred to the undersigned magistrate
judge for review, report, and recommendation in accordance
with the provisions of 28 U.S.C. §636 and the standing
orders of this Court. For the reasons stated below, the
motion is DENIED.
November 12, 2014, Hargrave was indicted with fourteen other
defendants on several counts arising out of a conspiracy to
distribute methamphetamine. (Rec. Doc. 1). She retained Roy
Richard to represent her in the proceedings.
September 15, 2015, Hargrave pled guilty to Count 1 -
Conspiracy to Distribute, and Possess with Intent to
Distribute Methamphetamine, in violation of 21 U.S.C.
§846. (Rec. Doc. 582). On September 14, 2015, the day
prior to the change of plea hearing, the Court conducted a
Garcia hearing. At the hearing, Hargrave expressed concern
that she had not spoken to Mr. Richard in quite a few months,
but by that time, she had spoken with him and was satisfied.
(Rec. Doc. 586, p. 3). She confirmed that she did not have
any issues at that time and that she was “doubly
sure” that she was satisfied with Mr. Richard's
representation. Id. p. 3 and 5.
January 15, 2016, she was sentenced to serve 120 months,
followed by five years of supervised probation and a special
assessment. (Rec. Doc. 448). During her pre-trial detention,
she was incarcerated at the Iberia Parish jail. She was later
transferred to a Florida facility to serve her sentence.
(Rec. Doc. 567-1, ¶3; 11). Hargrave now contends she had
minimal communication with Mr. Richard during the pre-trial
process and no communication with him after she was
sentenced. (Rec. Doc. 567-1, ¶7-13; 21).
August 17, 2018, Hargrave filed a Motion to Compel Mr.
Richard to turn over her file. (Rec. Doc. 529). The Court
granted the Motion and ordered Mr. Richard to turn over the
file to counsel appointed to receive same, Mr. Cliff LaCour.
(Rec. Doc. 532). When Mr. Richard failed to deliver the file
as ordered, the Court ordered him to appear and show cause.
(Rec. Doc. 540). At the show cause hearing, Mr. Richard
advised the Court that he had lost the file. Accordingly, the
Court ordered the Government to work with Mr. Richard to
recreate Hargrave's lost file and to deliver the
recreated file to Mr. Lacour. (Rec. Doc. 545). Among the
items in the recreated file was a March 6, 2015 letter from
the Assistant U.S. Attorney, Myers Namie, to Mr. Richard
advising that Jason Comeaux, the former Iberia Parish
Sheriff's Deputy who had investigated her case, was under
investigation by the U.S. Department of Justice Civil Rights
Division. The letter also provided the related civil suit
information. (Rec. Doc. 567-4). Mr. Richard did not provide a
copy of the letter to Hargrave or discuss its contents with
her. (Rec. Doc. 567-1, ¶17).
to Hargrave, she learned on August 20, 2018 that Comeaux had
been convicted of civil rights violations arising out of his
participation in the severe beating of an inmate at the
Iberia Parish Jail. (Rec. Doc. 567-1, ¶20; Rec. Doc.
567, p.7, referencing Rec. Doc. 530). She immediately filed
her Rule 60 Motion. (Rec. Doc. 536). The Court ordered the
Government to file a response and appointed Mr. Stephen
Shapiro to represent her. Following the file fiasco, Mr.
Shapiro filed the “Supplemental and Amended Memorandum
in Support of Motion for Relief from Judgment or Order
Pursuant to Rule 60 of the Federal Rules of Civil Procedure
and Vacate Conviction and Sentence Pursuant to 28 U.S.C.
§2255.” (Rec. Doc. 567). The Government filed its
Response on September 23, 2019. (Rec. Doc. 583).
Nature of Relief Sought
initially filed a Motion for Relief pursuant to Federal Rule
of Criminal Procedure Rule 60. Although the pro se
Motion was styled as a Motion under Criminal Rule 60,
Hargrave actually sought relief under Federal Rules of Civil
Procedure, Rule 60, which authorizes relief from civil
judgment on certain enumerated grounds. (Rec. Doc. 536, p.
2-3). Criminal Rule 60 pertains to victims' rights and is
inapplicable to this case. Likewise, Civil Rule 60 is
inapplicable in this criminal context. Rather, Hargrave seeks
to have her conviction and sentence vacated, as clarified in
her counsel's subsequent filing. (Rec. Doc. 567).
[A] court will sometimes recharacterize a motion filed by a
pro se prisoner as a request for habeas relief under
§ 2255 even though the motion is labeled differently.
“[P]ro se habeas petitions are not held to the
same stringent and rigorous standards as are pleadings filed
by lawyers.” Ultimately, “[i]t is the substance
of the relief sought by a pro se pleading, not the
label that the petitioner has attached to it, that determines
the true nature and operative effect of a habeas
United States v. Elam, 930 F.3d 406, 409 (5th Cir.
2019), citing Castro v. United States, 540 U.S. 375,
377 (2003), and Hernandez v. Thaler, 630 F.3d 420,
426 (5th Cir. 2011) (per curiam).
court may recharacterize a pro se litigant's
pleading as his first §2255 after informing the litigant
of its intent to recharacterize, warning the litigant that
the recharacterization will subject subsequent §2255
motions to the law's “second or successive”
restrictions, and providing the litigant with an opportunity
to withdraw, or to amend, the filing. Id., citing
Castro, 540 U.S. at 377. Here, however, Hargrave is
no longer proceeding pro se. In fact, her appointed
counsel, Mr. Shapiro, has recharacterized the relief sought
as that covered by §2255. Hence, the Court will construe
Hargrave's motion as a motion for relief under
Timeliness of §2255 Motion.
federal inmate has one year to file a motion for relief under
§2255. 28 U.S.C. §2255(f). The one-year period
commences with the latest of the following:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the