Opinion
Civil Action No. 19-cv-00490-GPG
05-13-2019
JOSEPH MICHAEL MOONEY, Applicant, v. USA, Respondent.
RECOMMENDATION REGARDING DISMISSAL
This matter comes before the Court on Applicant Joseph Michael Mooney's "F.R.Civ.P. Rule 60(b)(4) Motion for Relief from a Void Judgment" ("Motion") (ECF No. 1). The matter has been referred to this Magistrate Judge for recommendation (ECF No. 10).
"(ECF No. ___)" is an example of the convention I use to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). I use this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). --------
The Court must construe Applicant's filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520- 21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
The Court has reviewed the filings to date. The Court has considered the case file and the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Motion be dismissed without prejudice for lack of jurisdiction.
I. Factual and Procedural Background
Applicant is in the custody of the federal Bureau of Prisons in Littleton, Colorado. On February 19, 2019, he commenced this action by filing pro se the Motion (ECF No. 1). To date, Applicant has not resolved the filing fee.
As part of the Court's review pursuant to D.C.COLO.LCivR 8.1(b), the Court determined that the filing is deficient. Thus, on February 20, 2019, the Court entered an Order Directing Applicant to Cure Deficiencies (ECF No. 3). In the Order, the Court directed Applicant to submit a pleading on a current Court-approved form and address the filing fee. The Court provided Applicant with thirty days to comply and warned that his failure to do so would result in the dismissal of this action without further notice.
Also in the Order, the Court noted it appears that Applicant challenges the sentence imposed in his federal criminal case, because in the Motion (ECF No. 1), Applicant requests that the judgment and convictions imposed by the U.S. District Court for the Northern District of Georgia be reversed. The Court explained that this relief may be sought in the sentencing court under Fed. R. Civ. P. 60(b) or 28 U.S.C. § 2255. See also In re Lindsey, 582 F.3d 1173, 1174 (10th Cir. 2009) ("a Rule 60(b) motion may be subject to the requirements for second or successive applications"); see also Mooney v. Dunham, 670 F. App'x 979, 980 (10th Cir. 2016) (affirming dismissal of Applicant's § 2241 application filed in this District "because he had an adequate and effective remedy under 28 U.S.C. § 2255" before the sentencing court). The Court further explained that Applicant may seek relief under 28 U.S.C. § 2241 in the district of confinement; however, the purposes of an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion pursuant to 28 U.S.C. § 2255 are distinct and well established. The Court directed Applicant to clarify his claims and, if he desired to assert claims cognizable under § 2241, to use the correct form and address the filing fee.
At Applicant's request (ECF No. 4), the Court provided him with the correct forms (ECF No. 5). By Minute Order entered March 6, 2019 (ECF No. 5), the Court provided Applicant with an additional thirty days to comply with the Order Directing Applicant to Cure Deficiencies. The Court again warned that Applicant's failure to do so would result in the dismissal of this action without further notice.
In apparent response to the Order Directing Applicant to Cure Deficiencies, Applicant filed a "Supplement to Motion for Relief from a Void Judgment" (ECF No. 6) and an "Addendum to Supplement to Motion for Relief from a Void Judgment" (ECF No. 7). To date, Applicant has not addressed the filing fee or submitted a pleading on the current Court-approved form.
II. Failure to Prosecute and Lack of Jurisdiction
Applicant has failed to comply with the Order Directing Applicant to Cure Deficiencies within the time allowed. This failure alone warrants the dismissal of this action without prejudice for failure to prosecute and failure to comply with the Court's Order. U.S. ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005) ("dismissal is an appropriate disposition against a party who disregards court orders and fails to proceed as required by court rules").
However, based on Applicant's filings, the Court lacks jurisdiction over his request for relief. Thus, in lieu of dismissal for failure to prosecute, this Magistrate Judge recommends that the Motion (ECF No. 1) be dismissed for lack of jurisdiction.
As noted above, in the Motion, Applicant asks this Court to reverse his convictions imposed in the Northern District of Georgia and order his "immediate release," among other requests. (ECF No. 1 at 3, 12). Applicant argues that the Motion is "NOT a second or successive habeas corpus petition on the merits, but a legitimate attack on the jurisdiction of the issuing court to address those merits in the first place." (Id. at 3). Applicant argues the criminal judgment against him is void "due to a complete lack of subject-matter jurisdiction over the criminal proceedings for (1) violations of due process, (2) fraud perpetrated on the court by the government, (3) abuse of discretion, and (4) usurpation of power." (Id.). Applicant alleges he is "actually innocent" and "has been falsely imprisoned." (Id. at 4). In the Supplement (ECF No. 6) and Addendum (ECF No. 7), Applicant reiterates his argument that the Motion attacks "the District Court for the Northern District of Georgia, Atlanta Division's jurisdiction over my conduct as charged in my indictment."
Applicant is adamant that his request for relief properly relies upon Rule 60(b)(4), and not the federal habeas corpus statutes. Rule 60(b)(4) of the Federal Rules of Civil Procedure allows a court to relieve a party "from a final judgment, order, or proceeding" if "the judgment is void." A judgment is void "only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process of law." United States v. Buck, 281 F.3d 1336, 1344 (10th Cir. 2002) (citation omitted).
"Rule 60(b) does not apply to a criminal proceeding . . . Nor is Rule 60(b) an independent source of jurisdiction in a criminal case." United States v. Edge, 315 F. App'x 92, 94-95 (10th Cir. 2009) (unpublished) (citations omitted) (collecting cases). In Edge, the U.S. Court of Appeals for the Tenth Circuit addressed a similar matter, in which a prisoner filed motions under Rule 60(b) to challenge a federal criminal conviction. Id. at 94. The prisoner claimed, "his constitutional rights were violated, there was undisclosed exculpatory evidence, the government committed fraud on the court, and his conviction is void." Id. The court explained, "[a]lthough his motions were apparently submitted as Federal Rule of Civil Procedure 60(b) motions for relief from judgment, in reality, his arguments collaterally attack the disposition of his federal criminal proceedings." Id. (emphasis in original). The court affirmed the district court's determination "that Rule 60(b) provides no basis for [the] requested relief," but emphasized, the "only appropriate course of action open to the district court was to dismiss [the Rule 60(b)] motions for lack of jurisdiction." Id. at 94-96. (citation omitted) (emphasis in original).
The reasoning of Edge applies to the instant Motion. Applicant attacks the disposition of his federal criminal proceedings and requests that the criminal judgment of conviction be reversed. Rule 60(b) of the Federal Rules of Civil Procedure does not provide him with a basis for such relief. Thus, this Magistrate Judge recommends that the Motion (ECF No. 1) be dismissed without prejudice for lack of jurisdiction.
The Court recognizes that, in certain circumstances, Rule 60(b)(4) may be utilized to modify a judgment entered in a habeas corpus action. Gonzalez v. Crosby, 545 U.S. 524, 534 (2005) ("Rule 60(b) has an unquestionably valid role to play in habeas cases."); Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006) ("Under Gonzalez, a 60(b) motion is a second or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction."). If Applicant seeks relief under Rule 60(b)(4) with regard to the sentencing court's denial of relief under 28 U.S.C. § 2255, he may move for such relief before that court. There is no basis for such request in this District.
Although this Court may recharacterize a motion "in order to place it within a different legal category," Applicant is clear that he does not intend to invoke § 2255 or § 2241. Edge, 315 F. App'x at 95; (ECF No. 6 at 8 ("I am not filing an application for a § 2241 because that is not an appropriate use of that motion . . . I am not filing a § 2255 in the district of my conviction")). Applicant no doubt is aware of § 2255, as he previously moved for relief under this statute in the sentencing court on more than one occasion, but was not successful. See United States v. Mooney, 705 F. App'x 846, 848 (11th Cir. 2017) (setting forth procedural history of Applicant's criminal proceeding, direct appeal, and postconviction challenges). Thus, the Court recommends declining to recharacterize the Motion as under § 2255 or § 2241. United States v. Tucker, 642 F. App'x 926, 928 (10th Cir. 2016) (unpublished) ("A Rule 60(b) motion is properly recharacterized as a § 2255 motion if it 'asserts or reasserts a substantive challenge to the validity of the conviction or sentence.'") (citing Gonzalez, 545 U.S. at 532). In any event, even if a recharacterization under § 2241 was proper, this Court would lack statutory jurisdiction: "Mr. Mooney cannot use § 2241 because he had an adequate and effective remedy in § 2255." Mooney v. Dunham, 670 F. App'x 979, 980 (10th Cir. 2016).
III. Recommendation
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the "F.R.Civ.P. Rule 60(b)(4) Motion for Relief from a Void Judgment" (ECF No. 1) be DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
DATED at Grand Junction, Colorado, this 13th day of May, 2019.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge