Opinion
97 Civ. 1904 (CSH)
October 28, 2002
MEMORANDUM OPINION AND ORDER
Petitioner Roy William Harris, represented by newly retained counsel, moves pursuant to Rule 60(b)(6), Fed.R.Civ.P., for relief from the order of this Court dated May 20, 1998 which dismissed Harris's petition for a writ of habeas corpus under 28 U.S.C. § 2255. In the alternative, Harris asks the Court to treat the present motion as a petition for a writ of error coram nobis with respect to his related criminal case, U.S. v. Harris, S1 92 Cr. 455 (CSH). By this motion Harris seeks to challenge the calculation of his sentence imposed by this Court following his conviction by a jury on the charges in the indictment. Harris contends that the Court misapplied the United States Sentencing Guidelines ("USSG" or "the Guidelines") and that his sentence was impermissibly long.
The government contends that Harris is procedurally barred from making this motion, and that in any event the calculation of his sentence was correct.
This opinion is confined to the threshold question of whether Harris is entitled to make the present motion, since if he is not there will be no need to consider his contentions concerning the length of his sentence. For the reasons that follow, I hold that Harris is not barred from moving for relief under Rule 60(b)(6).
PROCEDURAL BACKGROUND
The underlying criminal case against Harris and his subsequent efforts to obtain habeas corpus relief have generated a number of opinions by this Court and the Second Circuit, familiarity with all of them being assumed.
Opinions and orders filed in the criminal case, captioned United States v. Harris, docket number S1 92 Cr. 455, are reported at 805 F. Supp. 166 (S.D.N.Y. 1992) ("Harris I"); 1992 WL 373473 (S.D.N.Y. Dec. 2, 1992) ("Harris II"); 1993 WL 300052 (S.D.N.Y. July 30, 1993) ("Harris III"), aff'd in part, rev'd. in part, and remanded, 79 F.3d 223 (2d Cir. 1996 ("Harris IV"), cert. denied, 519 U.S. 851 (1996), on remand, 60 F. Supp.2d 169 (S.D.N.Y. 1999) ("Harris V"); 1993 WL 465316 (S.D.N.Y. Nov. 10, 1993) ("Harris VI"); 1994 WL 268243 (S.D.N.Y. June 15, 1994) ("Harris VII"); 1994 WL 323244 (S.D.N.Y. July 5, 1994 ("Harris VIII"); 1994 WL 388985 (S.D.N.Y. July 22, 1994) ("Harris IX"); 1994 WL 683429 (S.D.N.Y. Dec. 6, 1994) ("Harris X"); and 1995 WL 7989 (S.D.N.Y. Jan. 10, 1995 ("Harris XI").
Opinions and orders filed in the habeas corpus case, captioned Harris v. United States, docket number 97 Civ. 1904, are reported at 1997 WL 188137 (S.D.N.Y. Apr. 17, 1997 ("Harris XII"); 1997 WL 272398 (S.D.N.Y. May 21, 1997 ("Harris XIII"); 1997 WL 689460 (S.D.N.Y. Nov. 3, 1997) ("Harris XIV"); 1997 WL 737709 (S.D.N.Y. Nov. 26, 1997) ("Harris XV"); 1997 WL 742525 (S.D.N.Y. Dec. 1, 1997) ("Harris XVI"); 1997 WL 806976 (S.D.N.Y. Dec. 31, 1997) ("Harris XVII"); 1998 WL 26187 (S.D.N.Y. Jan. 26, 1998) ("Harris XVIII"); 1998 WL 50214 (S.D.N.Y. Feb. 6, 1998) ("Harris XIX"); 1998 WL 63459 (S.D.N.Y. Feb. 17, 1998) ("Harris XX"); and 9 F. Supp.2d 246 (S.D.N.Y. 1998) ("Harris XXI"), rearg. denied, 1998 WL 635535 (S.D.N.Y. Sept. 15, 1998 ("Harris XXII"), aff'd., 216 F.3d 1072 (2d Cir. 2000) (table) ("Harris XXIII"), cert. denied, 531 U.S. 1203 (2001).
It is sufficient for present purposes to state that the 24-count indictment in S1 92 Cr. 455 charged Harris with wire fraud, bank fraud, money laundering, conducting a continuing financial crimes enterprise, and making a false statement on a loan application. The indictment also sought the forfeiture of certain assets of Harris. These charges arose out of Harris's conduct as chief executive officer of the Arochem oil companies in defrauding a consortium of banks lending money to Arochem. Arochem eventually defaulted on indebtedness to the banks totaling almost $200 million.
During pre-trial proceedings and at the jury trial Harris was represented by Lawrence Iason, Esq., of the firm of Morvillo, Abramovitz, Grand, Iason Silberberg. Mr. Iason is a former Assistant United States Attorney of considerable seniority and now an experienced white-collar criminal defense lawyer. I denied Harris's pre-trial motion to dismiss certain counts of the indictment and granted his motion to sever for separate trial the count charging Harris with making a false statement on a loan application. Harris I, 805 F. Supp. 166. Trial began on November 4, 1992. On December 14, 1992, the jury returned a verdict of guilty on Counts One through Twenty-Two, the counts submitted for its consideration. The government then moved to dismiss Count Twenty-Three, the bank loan application charge. On Count Twenty-Four Harris agreed to the entry of a judgment of forfeiture against him and the jury was not required to make further findings on that score.
Following the trial, Harris discharged Mr. Iason as his attorney and retained in his place David L. Lewis, Esq., also an experienced criminal defense lawyer. Mr. Lewis filed on Harris's behalf motions for a judgment of acquittal pursuant to Rule 29, Fed.R.Crim.P., and for a new trial pursuant to Rule 33. Harris also challenged his conviction on the grounds of ineffective assistance of trial counsel (Mr. Iason) and the improper admission of evidence. I denied Harris's motions in their entirety.Harris III, 1993 WL 300052. Mr. Lewis also moved for a downward departure from the Guidelines range on the ground of diminished capacity, USSG § 5K2.13, resulting from a pathological gambling disorder. Following an evidentiary hearing, I denied that motion. Harris X, 1994 WL 683429.
The Guidelines as I calculated them gave Harris an Offender Level of I and an Offense Severity Level of 36, resulting in a sentencing range of 188-235 months. On December 22, 1994, I sentenced Harris to 188 months' imprisonment, the shortest sentence permitted by the Guidelines as I calculated them, explaining in the judgment that I regarded a sentence of that duration as quite sufficient for a non-violent first offense. Harris's imprisonment was to be followed by a five-year term of supervised release. The sentence also imposed special assessments totaling $1,100, and ordered Harris to pay $200 million in restitution to the defrauded banks. The order of restitution specified that the Probation Department would set a payment schedule.
In calculating a sentence of 188 months, I endeavored to follow the Guidelines. Harris, now speaking through present counsel, Terence J. Lynam, Esq. and Richard B. Zabel, Esq., of the firm of Akin, Gump, Strauss, Hauer Feld, LLP, newly retained for the purpose of making the instant motion, contends that my calculations contained two errors. First, Harris contends that the money laundering charge in the indictment should have been grouped with the fraud charges pursuant to USSG § 3D1.2. Second, Harris contends that the Court's action in imposing both a two-level severity of offense increase under USSG § 2F1.1(b)(2)(A), for "more than minimal planning" under USSG ¶ 2F1.1 (b)(2)(A), and a four-level increase under § 3B1.1 (a), for being a leader or organizer in activity that involved five or more participants or was otherwise extensive, constituted impermissible double counting. See Harris's Main Brief at 13-27.
If these two contentions are well founded, Harris's Guidelines offense level would be reduced from 36 to 32 and the sentencing range would be reduced from 188-235 months to 121-151 months.
The sentencing hearing which led to the sentence I have described began on Friday, June 24, 1994, was not concluded on that day, and resumed on Monday, June 27, 1994, at which time I directed that an evidentiary hearing be conducted to explore Harris's request for a downward departure based on diminished capacity. As previously noted, eventually I denied that motion. All other Sentencing Guidelines issues were argued by counsel and decided by the Court during the hearings on June 24 and 27, 1994.
Prior to those hearings Mr. Lewis, then representing Harris, sent to the Court a 57-page single-spaced letter dealing with sentencing issues. There was also extended colloquy at the June 24 and 27, 1994 hearings about the proper Guidelines calculations. Given one of the procedural bars the government urges in opposing Harris's present motion, it is necessary to consider in some detail the submissions Mr. Lewis made on Harris's behalf at those hearings.
Of particular significance to Harris's entitlement to make his present Rule 60(b) motion, the transcripts of the June 1994 sentencing hearing make it plain that Mr. Lewis included in his sentencing arguments the same contentions that Harris's present counsel make on the instant motion.
Thus with respect to the grouping of the money laundering charge with the fraud charge, which Mr. Lynam contends on the present motion should have been done in calculating the Guidelines offense level, Mr. Lewis argued at the sentencing hearing:
It is our argument to you that under 3D1.2, subsection (d) that money laundering and the fraud counts should be grouped together. . . . [T]he Sentencing Commission's intent is that these two acts, money laundering and fraud, are to be considered together. That's the text, we would argue, of 3D1.2(d).
Transcript of June 24, 1994 sentencing hearing at 36, 39. USSG § 3D1.2 (d) is one of the Guidelines sections Mr. Lynam relies upon on the present motion. See Main Brief at 11. After extended colloquy I rejected Mr. Lewis's argument, noting as I did so that the cases on point favoring the government came from other circuits; I said in giving judgment on the point:
And I think those cases are properly reasoned and I elect to follow them and will not disturb the Pre-Sentence Report's grouping, or, to state it more accurately, refusal to group the offenses in this case.
There is no Second Circuit authority. It will on the appeal make for an interesting point for the court of appeals to consider. But for my part, at least, I think that the other circuits have analyzed it properly.
I overrule the objection to that particular calculation.
Id. at 44-45.
As for the assertedly impermissible double counting, Mr. Lewis argued during an extended colloquy that in the light of the Court's prior ruling on Harris's role in the offense,
the facts here that you found would indicate that the organizer or manager would be someone who plays a role in more than minimal planning. In fact, the factual finding, including planning, I would argue on the face of what your honor has already decided, as opposed to Rappaport, it would be double counting. That's where we are, I think, with this finding.Id. at 56. Again, I rejected Mr. Lewis's argument after further colloquy had been held on June 27. I said in part, on the basis of Second Circuit authority as I understood it, "[t]here is no impermissible double counting involved in an enhancement of two points for more than minimal planning under Section 2F1.1 (b)(2)(A) and a four point enhancement for organizer or leader under 3B1.1 (a)." Transcript of June 27, 1994 hearing at 86. In rejecting Mr. Lewis's contention, I was attempting to deal correctly with precisely the same sections of the USSG that Mr. Lynam relies upon in the present Rule 60(b) motion. See Main Brief at 23.
Mr. Lewis represented Harris on Harris's direct appeal from his conviction and sentence. Harris contended on appeal that this Court erred by (1) denying his pre-trial and post-trial motions, (2) denying his motion for a downward departure from the Sentencing Guidelines, (3) committing other trial errors, and (4) making an order of restitution without fully considering the relevant circumstances. In Harris IV, 79 F.3d 223, the Second Circuit rejected all these contentions except that relating to the restitution order, which the court of appeals remanded for reconsideration, leading in turn to this Court's opinion on remand in Harris V, 60 F. Supp. 169. In all other respects the Second Circuit affirmed Harris's conviction and sentence. The Second Circuit had no occasion to consider on direct appeal the Sentencing Guidelines calculations which present counsel for Harris challenge in the instant motion because Mr. Lewis did not raise those issues on direct appeal.
Mr. Lewis now disappears from the stage. Harris, having begun to serve his term, obtained the assistance of another attorney, John B. Conway, Esq., who on March 18, 1997 filed on Harris's behalf a second motion for a new trial pursuant to Rule 33, Fed.R.Crim.P., coupled with a motion to vacate his sentence pursuant to the habeas corpus statute, 28 U.S.C. § 2255. That motion bore docket number 97 Civ. 1904 and was assigned to me in the ordinary course as the trial judge. The principal grounds of the motion were that the government prosecutors in charge of the case knowingly concealed evidence exculpatory of Harris, in violation of their obligations under Brady v. Maryland, 373 U.S. 83 (1963), and also misrepresented or suppressed evidence, knowingly adduced false testimony, and intimidated potential defense witnesses. These charges were based primarily upon asserted newly discovered evidence generated by ongoing civil litigation involving the lending banks and others in the wake of Arochem's default on the loans underlying the criminal case against Harris.
In an affidavit accompanying the present motion, Mr. Conway states candidly that although a member of the Bar, he had retired from the full-time practice of law in 1993 to run a family antique business in Connecticut. Mr. Conway's law practice had focused primarily on civil litigation, oil trading, and maritime law. He has no criminal law experience and consequently no familiarity with the Byzantine complexities of the USSG. (I say this not to demean Mr. Conway's professional skills; on the contrary, maritime law in particular attracts practitioners of the highest quality.) Mr. Conway, acquainted with Harris's family because they lived in the same town, and at the request of mutual friends, visited Harris while Harris was in prison awaiting sentence, undertook to assist him in civil litigation brought by the defrauded banks, and ultimately (and reluctantly) agreed to file a habeas petition for Harris after the Second Circuit rejected the direct appeal presented by Mr. Lewis. Mr. Conway's reluctance stemmed from his awareness that he "knew very little about criminal law or procedure, or post-conviction matters," Conway Affidavit verified September 17, 2001 at ¶ 12 ("Conway Aff."), but all efforts to retain experienced criminal lawyers came to nothing as the result of Harris's indigence, and Conway ultimately undertook to present Harris's Rule 33 and habeas motions himself, aided to some degree by Jed Davis, Esq., another civil attorney who also had no experience in criminal law or procedure.
Mr. Conway's visiting Harris in prison can only be regarded as admirable. See Matthew 25:43.
In pressing Harris's post-conviction motions, Mr. Conway did his very best to compensate for his lack of criminal law experience by unflagging energy and devotion (for which he was paid nothing). Mr. Conway examined the contents of the extensive criminal trial record, pored over voluminous depositions and exhibits generated by the satellite civil litigation (presided over for the most part by District Judge McKenna), engaged in brisk discovery practice in support of the motions he had filed on behalf of Harris, and filed lengthy written submissions with this Court. Ultimately these efforts failed to persuade. I denied Harris's Rule 33 and habeas motions, Harris XXI, 9 F. Supp.2d 246, and denied a motion for reconsideration, Harris XXII, 1998 WL 635535; the Second Circuit affirmed, 216 F.3d 1072 (2d Cir. 2000) (table), 2000 WL 730375; and the Supreme Court denied certiorari, 531 U.S. 1203 (2001).
Mr. Lynam of the Akin, Gump firm, who represents Harris on the present motion, states correctly that during his presentation of Harris's § 2255 petition Mr. Conway "never even considered reviewing the calculation of petitioner's sentence, to determine whether any legal issues were presented." Main Brief at 2. Mr. Lynam states disapprovingly that "Mr. Conway's failure to raise these sentencing issues [the ones urged on the present motion] constituted ineffective assistance of counsel, which has severely prejudiced petitioner by causing his continued incarceration. Instead of raising these issues, Mr. Conway attempted to re-try the case though a § 2255 motion, focusing entirely on the trial and not at all on the sentencing." Id. Mr. Conway responds to that verbal blow by turning the other cheek and agreeing with it. "I understand," Mr. Conway says in his affidavit, "that Mr. Lynam is asserting that I did not provide effective assistance of counsel in representing Mr. Harris in that first § 2255 habeas petition. I fully agree with that assessment. . . . I am not a criminal lawyer, I was not qualified to represent Mr. Harris in his first § 2255 habeas petition and I did not have the time to do an adequate and thorough job. . . . I never examined the sentencing guidelines when I worked on his habeas petition." Conway Aff. at ¶ 11.
While I am on the subject of ineffective assistance of counsel, it is necessary to observe that Mr. Lynam cannot confine his criticism to Mr. Conway. I have noted supra that Mr. Lewis, who is an experienced criminal lawyer, did not raise on direct appeal the Guidelines issues I had resolved against Harris during the sentencing hearing, which Mr. Lynam now wishes to revisit on the present motion. That circumstance requires Harris's present counsel to contend that Mr. Lewis rendered Harris ineffective assistance on the appeal, as indeed Mr. Lynam does in Harris's Main Brief at 3 ("These [Guidelines calculation] errors should initially have been raised by David Lewis, counsel for petitioner at that time. Mr. Lewis's failure to do so constituted ineffective assistance of counsel and a violation of petitioner's Sixth Amendment right."), and in the Reply Brief at 3, where Mr. Lynam characterizes Mr. Lewis's "failure to raise these issues on appeal" as "the first level of ineffective assistance of counsel that [Harris] received, which should have been raised by his habeas counsel (Mr. Conway").
Mr. Lynam, Mr. Zabel and the Akin, Gump firm, who are actively engaged in the defense of white collar criminal cases, were approached by several close friends of Harris and asked to review the case. Counsel concluded that Harris's sentence was excessive for the reasons previously stated. Aware of Harris's previous § 2255 motion, on April 20, 2001 counsel filed a habeas corpus petition pursuant to 28 U.S.C. § 2241 in the District of New Jersey, where Harris was then incarcerated. The petition raised the perceived sentencing errors previously described, "and argued that [Harris] was entitled to immediate relief in the form of release to a halfway house followed by supervised relief." Main Brief at 3 [sic; presumably should read `release']."
The District of New Jersey concluded that the § 2241 motion should be treated as a § 2255 motion and, since Harris had previously filed a § 2255 motion, he needed permission from the court of appeals to file a second one. Accordingly the District of New Jersey transferred the case to the Second Circuit, which denied Harris permission to file a second § 2255 motion.
In those procedural circumstances, Harris's present counsel filed the present motion pursuant to Rule 60(b), Fed.R.Civ.P., to set aside this Court's order dismissing the § 2255 petition that Mr. Conway filed on Harris's behalf. Harris purports to find recent Second Circuit support for that procedural approach in Rodriguez v. Mitchell, 252 F.3d 191 (2d Cir. 2001). In the alternative, Harris asks this Court to issue a writ of error coram nobis to reach and correct the asserted errors in the calculation of his sentence.
The government contends that the present motion is procedurally barred and in any event without merit.
II. DISCUSSION
The government asserts four grounds for arguing that Harris's present motion is procedurally barred.
A. Events Occurring at the Sentencing Hearing
First, the government states that "Harris did not raise any of his present sentencing claims at his original sentencing proceeding." Letter Brief at 8. Operating from that factual premise, the government argues that Harris has forfeited those claims unless this Court committed "plain errors" as that phrase is used in Rule 52(b), Fed.R.Crim.P.
The Supreme Court has characterized Rule 52(b) as "intended to afford a means for the prompt redress of miscarriages of justice," and cautioned that "[b]y its terms, recourse may be had to the Rule only on appeal from a trial infected with error so `plain' the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's assistance in detecting it." United States v. Frady, 456 U.S. 152, 163 (1982). The government says that the Court's rulings on these sentencing issues did not constitute errors at all, let alone plain ones.
I need not explore the plain error rule at length because the government's factual premise is wrong. Harris did make these sentencing claims at the original sentencing proceeding. As demonstrated by Harris's Reply Brief at 2-3, a fair reading of Mr. Lewis's December 13, 1993 letter to this Court, in advance of the sentencing hearing, reveals that he urged both points. Moreover, as demonstrated in Part I of this Opinion, Mr. Lewis argued both Guidelines claims at the sentencing hearings before me on June 24 and 27, 1994. While Mr. Lewis failed to persuade me on those claims, he most certainly raised them. The present briefs of counsel seem to suggest that nobody thought to read the sentencing hearing transcripts, a startling omission if true. If counsel wish to borrow the Court's copies, they may come to Chambers and ask for them. In any event, there is no substance to the government's first asserted procedural bar.
B. Events Occurring on Direct Appeal
Second, the government says that Harris's present sentencing claims are barred by his failure to raise them on direct appeal. In contrast with its first ground for a procedural bar, the government's factual premise on this one is accurate. Mr. Lewis did fail to raise these sentencing claims on direct appeal. Mr. Lynam does not contend otherwise; on the contrary, he professes to find in that failure the ineffective assistance of two of his predecessors, Mr. Lewis's failure to assert those claims on the appeal and Mr. Conway's failure on the first § 2255 motion to criticize Mr. Lewis for that omission.
It is generally held that "where a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." Billy-Eko v. United States, 8 F.3d 111, 113-14 (2d Cir. 1993) (citation omitted). For analytic purposes, Harris has no difficulty in demonstrating actual prejudice, since if on direct appeal the Second Circuit had been presented with Harris's sentencing claims and agreed with them, then as previously noted the Guidelines range and Harris's sentence would have been substantially reduced. It is difficult to imagine a circumstance more prejudicial than being in prison for a longer time than the law requires. That intuitive assessment is confirmed by the Supreme Court's recent decision in Glover v. United States, 531 U.S. 198, 203 (2001) ("Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance."). Glover, which also turned upon the correctness of the district court's Guidelines calculations, applies to the case at bar a fortiori, since the asserted error in Glover, "petitioner alleges, increased his prison sentence by at least 6 months and perhaps by 21 months." Id. at 200. If my Guidelines calculations were erroneous in the manner Harris asserts, his prison sentence was wrongfully increased by a number of years.
The government argues that Harris cannot show he was prejudiced by appellate counsel's failure to assert the sentencing claims on direct appeal because this Court's rulings were correct and the Court of Appeals would have affirmed them, not reversed them. While arguing in the alternative is an accepted form of modern pleading, there is nonetheless a tension inherent in the government telling me that I cannot listen to Harris at all, but if I did I would reject his arguments. I think the proper course for me to follow at this juncture is to defer consideration of the merits of Harris's sentencing claims and first decide if he is procedurally barred from making them.
So I think that the inquiry must focus upon whether Harris has shown a "cause for the procedural default" of failing to assert these sentencing claims on direct appeal. This squarely presents the question whether Harris had the benefit of that effective assistance of counsel secured to him by the Sixth Amendment to the United States Constitution. That this constitutional guarantee extends to a criminal defendant's post-conviction direct appeal was settled by the Supreme Court in Evitts v. Lucey, 469 U.S. 387, 396 (1985) ("A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of counsel.") (footnote omitted).
The seminal case of Strickland v. Washington, 466 U.S. 668 (1984), places a demanding burden of persuasion upon a party claiming that his counsel's assistance was constitutionally ineffective, a proposition that "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The Court instructed in Strickland that
a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.Id. at 690.
Applying these principles to the case at bar, I conclude that Mr. Lewis's failure to include these sentencing issues on Harris's direct appeal was professionally unreasonable and thus amounted to ineffective assistance of counsel. Sentencing Guidelines calculations are not always simple or cut and dried. On the contrary, controversies concerning Guidelines calculations consume enormous amounts of the energies of district courts and the circuit courts of appeal. I think it clear that the Second Circuit should have been asked to review the two rulings in question on direct appeal. Indeed, as noted in Part I, I stated at the sentencing hearing that the grouping issue "will on the appeal make for an interesting point for the Court of Appeals to consider," given the fact that there was at that time no controlling Second Circuit authority on the issue. This makes counsel's failure to include these issues on the appeal subsequently taken particularly puzzling.
In these circumstances, Harris's failure to raise these sentencing issues on direct appeal does not bar his present effort to do so.
As noted in Part I of this opinion, present counsel for Harris argue that Mr. Conway rendered ineffective assistance by failing, in the § 2255 petition presented by Mr. Conway, to complain of Mr. Lewis's omission on direct appeal. I need not consider that contention with respect to the point at issue because the particular procedural bar urged by the government and discussed in Part II.B. focuses solely upon Harris's failure to raise these sentencing issues on direct appeal, a process in which Mr. Lewis participated but Mr. Conway did not.
C. The Efficacy of Harris's Rule 60(b) Motion
The government's third and fourth procedural points relate to Harris's invocation of Rule 60(b) as the vehicle for setting aside this Court's order dismissing the initial § 2255 motion filed on behalf of Harris by Mr. Conway. Specifically, Harris relies upon Rule 60(b)(6), which enables a district court, in the absence of any of the five grounds described in Rule 60(b)(1)-(5), all inapplicable to Harris's case, to relieve a party "from a final judgment, order or proceeding for . . . any other reason justifying relief from the operation of the judgment."
The government says this attempted utilization of Rule 60(b) is twice damned: first, as an impermissible effort to circumvent the one-year statute of limitations on bringing claims under § 2255; and second, as an equally impermissible effort to circumvent the statutory restrictions on second or successive § 2255 petitions.
I find it difficult to follow the government's first argument. To be sure, § 2255 provides that "[a] 1-year statute of limitation shall apply to a motion under this section," running from the latest of four possible dates, each of which would bar Harris's present motion if it was made under § 2255. However, the § 2255 motion submitted by Mr. Conway was timely filed (the government does not contend otherwise); and Mr. Lynam styles the present motion as one made under Rule 60(b) of the Federal Rules of Civil Procedure for the purpose of vacating my judgment denying Harris § 2255 relief. In order to invoke § 2255's statute of limitation as a bar to Harris's present motion, the government must show that, as a matter of law, I am required to peel off Mr. Lynam's Rule 60(b) label and affix a § 2255 label. But no rule of law decrees that a Rule 60(b) motion filed in these circumstances must be regarded as a § 2255 motion; on the contrary, the Second Circuit has recently ruled that "a motion under Rule 60(b) to vacate a judgment denying habeas is not a second or successive habeas petition and should therefore be treated as any other motion under Rule 60(b)." Rodriguez v. Mitchell, 252 F.3d 191 (2d Cir. 2001). The timeliness of a Rule 60(b) motion is governed by the Rule itself, which requires, with respect to the basis for relief Harris asserts, that the motion be made "within a reasonable time." It is hardly surprising that the habeas statute does not undertake to specify when a motion under a rule of civil procedure must be made, and there is no substance to the government's effort to refashion § 2255 in that manner.
The question of substance, arising out the government's alternative argument, asks whether Harris is impermissibly invoking Rule 60(b) to circumvent the statutory restrictions on second or successive habeas corpus applications found in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244 (b), incorporated by reference in the last paragraph of § 2255. Harris and the government apparently agree that the Second Circuit answered this question in Rodriguez, 252 F.3d 191, but they disagree on what answer the court of appeals gave. This makes it necessary to analyze Rodriguez with some care.
The sentencing claims which Harris asserts in his present motion were not presented in his earlier § 2255 petition, an omission implicating the AEDPA's provision that "[a] claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed" unless the petitioner shows the existence of one of several circumstances, none of which could be shown by Harris. 28 U.S.C. § 2244 (b)(2). Before a second or successive habeas application is filed in the district court, the applicant must move in the appropriate court of appeals for an order authorizing the district court to consider the application, and a three-judge panel of the court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of § 2244(b). § 2244(b)(3)(A)-(C). § 2255 provides that "[a] second or successive motion" under that section "must be certified as provided in section 2244 by a panel of the appropriate court of appeals" to contain certain specified showings, none of which Harris could make.
Rodriguez was convicted of murder and robbery in a New York state court. A time came when he filed a petition for habeas corpus under § 2254 in the Eastern District, contending that his trial attorney, one Mort, had rendered ineffective assistance. The district court directed the prosecution to call Mort to testify at a hearing on the petition, but Mort wrote to the court giving reasons why he could not attend, and the court dismissed the petition. The Second Circuit affirmed that dismissal. Rodriguez then filed a motion in the district court to vacate the judgment dismissing his habeas petition pursuant to Rule 60(b) "on the ground that Mort had made fraudulent representations in his letter to the court . . . and that by means of these misrepresentations he was able to extricate himself from testifying and thereby corroborating Rodriguez's claims." 252 F.3d at 196. After the district court denied that motion, the court of appeals affirmed, and Rodriguez made an unsuccessful motion to vacate the judgment of conviction in the state court, Rodriguez renewed in the Eastern District "his Rule 60(b) motion to vacate his habeas petition, arguing once again that Mort fraudulently represented in his letter to the court that he was a lawyer in Ohio." Id. at 197. The district court denied that renewed Rule 60(b) motion and refused to issue a certificate of appealability ("COA"). Rodriguez then requested the Second Circuit to issue a COA, and subsequently moved in the court of appeals for authorization to file a second habeas petition in the district court. The court of appeals consolidated the motion for a COA with the motion for authorization to file a second habeas petition and decided both issues in the opinion reported at 252 F.3d 191.
The respondent state authorities opposed the issuance of a COA with respect to Rodriguez's Rule 60(b) motion on the ground that "the motion under Rule 60(b) is a second or successive petition, subject to the standards of the [AEDPA]." 252 F.3d at 194. The Second Circuit rejected that contention. Judge Leval's opinion, after noting that "[t]he question whether a Rule 60(b) motion to vacate a judgment denying habeas should be considered as a second or successive habeas petition is one we have never directly addressed," proceeded to address it: "We now rule that a motion under Rule 60(b) to vacate a judgment denying habeas is not a second or successive habeas petition and should therefore be treated as any other motion under Rule 60(b)," id. at 198, and consequently not subject to the standards of § 2244(b), id. at 194.
Because Harris and the government read Rodriguez quite differently, it is useful to quote from the opinion at some length.
The Rodriguez court explained its conclusion that a Rule 60(b) motion is not a second or successive habeas petition by stating:
A motion under Rule 60(b) and a petition for habeas have different objectives. The habeas motion under 28 U.S.C. § 2254 seeks to invalidate the state court's judgment of conviction. As to the motion under Rule 60(b), while it is undoubtedly a step on the road to the ultimate objective of invalidating the judgment of conviction, it does not seek that relief. It seeks only to vacate the federal court judgment dismissing the habeas petition. The grant of such a motion would not have the effect of invalidating the state conviction. It would merely reinstate the previously dismissed petition for habeas, opening the way for further proceedings seeking ultimately to vacate the conviction. The fact that the Rule 60(b) motion contemplates ultimately the vacating of the conviction is shared with every motion the petitioner might make in the course of pursuing his habeas — motions to compel disclosure or quash the respondent's discovery demands, motions for extension of time to answer the adversary's motion, motions to be provided with legal assistance, motions for summary rejection of the respondent's contentions. All such motions, like the motion under Rule 60(b), seek to advance the ultimate objective of vacating the criminal conviction. But each seeks relief that is merely a step along the way. In our view, neither these motions, nor the motion under Rule 60(b) that seeks to vacate the dismissal of the habeas petition, should be deemed a second or successive petition within the meaning of 28 U.S.C. § 2244 (b).252 F.3d at 198-99.
In Rodriguez the Second Circuit acknowledged "that the majority of circuit courts have held that a Rule 60(b) motion to vacate a judgment denying habeas either must or may be treated as a second or successive habeas petition" but pointedly disagreed with them, stating that "better reasons support the conclusion that a Rule 60(b) motion to vacate a judgment denying habeas is not a second petition under § 2244(b)."Id. at 199-200. At 252 F.3d 200 n. 2, the Second Circuit cited a number of cases from other circuits with which it expressly disagreed, includingMcQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996), and Hunt v. Nuth, 57 F.3d 1327 (4th Cir. 1995); it is accordingly somewhat surprising to find the government relying on those very cases in this case (see Letter Brief at 11).
The Rodriguez court also noted that
the ground that the petitioner asserts in support of his motion under Rule 60(b) — his claim that Mort, his state trial attorney, made fraudulent representations to the federal district court and that the respondent fraudulently concealed that respondent had deposed Mort — relates to the integrity of the federal habeas proceeding, not to the integrity of the state criminal trial.252 F.3d at 199. The government fastens upon this language and argues that "Rodriguez is better read as holding that Rule 60(b) motions will not be treated as second or successive petitions when they go to the integrity of the initial habeas petitions," Letter Brief at 12, which the government contends Harris's Rule 60(b) motion does not do.
I reject this argument for two reasons. First, the government readsRodriguez too narrowly, given the broad language with which the Second Circuit expressed its reasoning, a rationale that would on its face apply to all Rule 60(b) motions to vacate habeas denials, whether or not the motion attacked the integrity of the initial habeas proceeding. Second, even on the government's narrow reading of Rodriguez, Harris is in fact attacking the integrity of the initial habeas proceedings submitted by Mr. Conway. Specifically, Harris contends that Mr. Conway rendered ineffective assistance of counsel by failing to include in the habeas petition the sentencing claims which Mr. Lewis's ineffective assistance caused to be omitted from the direct appeal. Mr. Conway's forthright acknowledgment of his own inexperience in criminal sentencing issues and the consequent ineffectiveness of his assistance to Harris at that juncture establishes to this Court's satisfaction that Harris suffered a deprivation of constitutional magnitude in the presentation of his initial habeas proceeding. Accordingly Harris's Rule 60(b) motion goes directly to the integrity of the habeas proceeding, and the case falls within the ruling in Rodriguez, whether the Second Circuit's opinion be given a broad reading or a narrow one.
Judge Cote has apparently construed Rodriguez in the manner the government does; see Gitten v. United States, 2002 WL 662883 (S.D.N.Y. April 23, 2002) and 2002 WL 1891338 (S.D.N.Y. Aug. 15, 2002). To the extent that Judge Cote's reading of Rodriguez differs from the one I express in text, I respectfully disagree.
The fact that Rodriguez's Rule 60(b) motion failed on its meritssee 252 F.3d at 200-201, does not affect the procedural analysis stated in text.
Lastly, the government contends that Harris's Rule 60(b) motion fails because Harris did not make it "within a reasonable time," as required by Rule 60(b)(6). The government relies upon the Second Circuit's statement in Rodriguez, 252 F.3d at 201, remarking of a Rule 60(b) motion to vacate a habeas denial that "[w]e do not think that three and one-half years from the date judgment was entered is a reasonable time." The government points to the almost eight year interval between Harris's sentencing on December 22, 1994 and the making of the present motion, which was dated July 11, 2002 and served on the government by mail on that date.
I reject the government's simplistic contention. Whether a movant acted "within a reasonable time" depends upon the totality of the circumstances and is fact intensive. In Harris's case, Mr. Conway represented Harris through this Court's denial of the habeas petition in May 1998, the Second Circuit's affirmance of that denial on June 2, 2000, and the Supreme Court's denial of certiorari, which did not occur until February 26, 2001. A salient contention of the present motion is that Mr. Conway's failure to raise these sentencing issues constituted ineffective assistance of counsel. I agree with that evaluation, as does, to his credit, Mr. Conway himself. But it would be entirely unfair to count against Harris time in which claims were not asserted because his attorney ineffectively failed to raise them. Harris's present counsel, Mr. Lynam and Mr. Zabel, made their first filing in the District of New Jersey on April 20, 2001, that being the first step on the journey that resulted in the present motion. Present counsel could not have taken that first step before February 26, 2001, while Harris's petition forcertiorari was still pending, and counsel have moved with reasonable speed since then.
III. CONCLUSION
For the foregoing reasons, the Court rejects each of the government's several contentions that Harris's present motion under Rule 60(b) is procedurally barred. Accordingly, I need not reach the viability of Harris's alternative procedural vehicle, a writ of error coram nobis.
Therefore the Court will consider the merits of Harris's contentions with respect to the length of his sentence, as to which I intimate no present view. The present briefs of counsel deal with those issues at some length, but I will give counsel an opportunity to make further submissions if they wish.
The Court makes the following scheduling order:
1. If either Harris or the government wishes to file and serve further briefs on the sentencing issues, they are directed to do so simultaneously on or before November 8, 2002.
2. In the event of such further filings, the parties may file and serve reply briefs simultaneously on or before November 22, 2002.
3. The case will be called for oral argument on December 6, 2002, at 10:30 a.m. in Room 17C, 500 Pearl Street.