Opinion
Criminal Case No.: 2:98cr143 Civil Case No.: 2:00cv522
09-04-2014
UNITED STATES of AMERICA v. LYNVAL K. ANDERSON, Petitioner.
OPINION AND ORDER
This matter is before the Court on pro se petitioner Lynvar K. Anderson's ("Petitioner" or "Anderson") Motions for the Respondent for Order to Produce Grand Jury Testimony and the Release of the 3500 Material, Doc. 99, Motion for Relief from Judgment, Doc. 100, and Motion to Expedite Proceedings, Doc. 103. For the reasons stated herein, the Court DENIES the Motions.
I. BACKGROUND
The instant motions are the latest in a long-line of post-trial motions that Petitioner has filed with this Court attempting to attack his March 25, 1999 conviction for participating in a continuing criminal enterprise, in violation of 21 U.S.C. §§ 846 and 841(a)(1). On July 13. 1999, Petitioner was sentenced to 480 months imprisonment, 5 years supervised release, and ordered to pay a $100 special assessment. Doc. 42. The same day that the Court entered judgment, Petitioner filed his notice of appeal. Doc. 43. The appeal was dismissed on September 7, 1999 because Petitioner waived his right to appeal in his plea agreement. Doc. 45.
Petitioner was also charged with conspiracy to distribute and possess with intent to distribute cocaine base and cocaine, possession with intent to distribute cocaine, distributing cocaine base, carrying a firearm during and in relation to a drug trafficking crime, and felon in possession of a firearm.
On June 29, 2000, Petitioner moved for a Reduction of Sentence for Substantial Assistance. Doc. 48. On July 11, 2000, the Government responded in opposition. Doc. 49. By Order dated July 18, 2000, the Court denied this Motion for lack of jurisdiction because the Government had not filed the motion. Doc. 52.
The Court noted that the Government asserted "that Anderson withheld relevant information during debriefings and that the information he supplied contradicted an investigative report and other, credible witnesses." Doc. 52.
However, prior to ruling on this motion, Petitioner filed his first Motion to Vacate under 28 U.S.C. § 2255 on July 14, 2000. Doc. 50. In his Motion, Petitioner asserted that he "was prepared to proceed to trial." Id. at 2. He also alleged that the Government offered him a guilty plea to only the conspiracy charge in the Indictment, but that his defense counsel failed to inform of the offer until "one to two days prior to the plea deadline." Id. By the time Petitioner decided he wanted to accept this plea offer, it expired and was not renewed. Id. at 2-3. However, in his Memorandum of Law attached to this motion, he only asserted three points in his "statement of issues": (1) whether counsel was ineffective at sentencing for failing to challenge the amount and type of drugs attributed to the Petitioner, (2) whether the Government violated his due process rights by failing to file a motion for substantial assistance, and (3) whether an evidentiary hearing was warranted. Doc. 51 at 2. He neglected to mention any alleged ineffective assistance of counsel for failing to inform him of the Government's prior plea offer in his Memorandum. On October 2, 2000, Petitioner filed a Motion to Withdraw and/or Amend his Motion to Vacate to add a claim under Apprendi v. United States, 120 S. Ct. 2348 (2000). Doc. 53. On October 12, 2000, the Court entered an Order denying Petitioner's Motion relating to the ineffective assistance of counsel at sentencing and due process claims. Doc. 54. The Court did, however, grant Petitioner leave to file an amended complaint addressing Apprendi. Id. The Court's Order did not address any alleged ineffective assistance of counsel at the plea negotiation phase. Petitioner moved for reconsideration of the Court's denial of his claim, and moved to extend time to file his amended claim, on October 23, 2000. Docs. 56-57. Petitioner's motion for reconsideration brought forth a litany of acts that Petitioner alleged showed his counsel was ineffective, including the failure to present the Government's plea offer to the conspiracy charge in a timely manner. Doc. 56 at 3. The Court denied the Motion for Reconsideration, but granted the Motion to Extend Time to file his amended claim. Doc. 58.
On January 16, 2001, Petitioner filed his supplemental memorandum addressing the Apprendi claim. Doc. 59. Petitioner moved to file a second amended § 2255 Motion on February 26, 2001. Doc. 61. On March 2, 2001, the Court ordered the Government to respond to Petitioner's first amended motion. Doc. 60. The Government filed its response on March 9, 2001. Doc. 62. By Order dated April 23, 2001, the Court denied Petitioner's § 2255 claims based on Apprendi. Doc. 63. Petitioner filed his notice of appeal and request for certificate of appealability on June 21, 2001. Doc. 64. On December 26, 2001, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") denied the request for a certificate of appealability and dismissed the appeal. Doc. 67.
On February 10, 2006, the Fourth Circuit denied Petitioner's motion for authorization to file a second or successive § 2255 Motion. Doc. 68.
On February 14, 2008, Petitioner filed a Motion for Retroactive Application of Sentencing Guidelines as to Crack Cocaine Offenses. Doc. 70. The Court ordered the Government to respond to this motion on March 21, 2008. Doc. 73. The Government responded in opposition on April 4, 2008. Doc. 74. Petitioner filed his reply on April 18, 2008. Doc. 76. On April 25, 2008, the Court entered an Order denying the motion, because Petitioner's advisory guideline range was not reduced by the amendments. Doc. 77. Petitioner filed his notice of appeal on May 5, 2008. Doc. 79. The Fourth Circuit affirmed the Court's decision on August 21, 2008. Doc. 82.
The Fourth Circuit's mandate would not issue until October 20, 2008, as Petitioner filed a motion for rehearing. Doc. 87.
On November 22, 2011, Petitioner filed a letter motion for retroactive application of sentencing guidelines to crack cocaine offense. Doc. 88. On December 1, 2011, the Court ordered the Government to file a preliminary response indicating whether it would oppose Petitioner's motion. Doc. 89. On December 19, 2011, the Government responded in opposition. Doc. 91. Petitioner moved the Court to appoint counsel on January 10, 2012. Doc. 92. On January 18, 2012, the Court denied both motions, as again the amendments did not change the advisory guidelines used to calculate Petitioner's sentence. Doc. 93. On February 1, 2012, Petitioner filed his notice of appeal. Doc. 94. The Fourth Circuit affirmed the Court's decision on June 26, 2012. Doc. 96.
On September 12, 2012, Petitioner filed a Motion for the Respondent for Order to Produce Grand Jury Testimony and the Release of the 3500 Material pursuant to Title 18 U.S.C. § 3500 and rule 6(e) 16(a) and 16(b) Crim. Proc. (hereinafter "Grand Jury Motion"). Doc. 99. On March 21, 2013, Petitioner also filed a Motion for Relief from Judgment (hereinafter "Rule 60 Motion"). Doc. 100. On March 31, 2014, Petitioner filed a Motion to Expedite Proceedings. Doc. 103.
Petitioner also moved the Fourth Circuit for authorization to file a successive § 2255 Motion, which was denied on April 11, 2013. Doc. 102.
On May 19, 2014, Petitioner moved the Fourth Circuit for a writ of mandamus, asking the Fourth Circuit to order the Court to respond to his pending Rule 60 Motion. The Fourth Circuit terminated this motion on June 9, 2014 after Petitioner moved to voluntarily dismiss the case. Doc. 106.
On May 29, 2014, the Court entered an Order advising Petitioner that it intended to characterize his Rule 60 Motion as a second or successive § 2255 Motion. Doc. 104. On June 6, 2014, Petitioner responded in opposition to the Court's characterization. Doc. 105. Accordingly, the Court will move forward addressing his Rule 60 Motion on the merits.
II. LEGAL STANDARDS
It is settled in this circuit that "[a]n indigent is not entitled to a transcript at government expense without a showing of the need, merely to comb the record in the hope of discovering some flaw." United States v. Glass, 317 F.2d 200, 202 (4th Cir. 1963). It is equally clear that when a need for a transcript in order to collaterally attack a conviction is shown, equal protection and due process require the state to furnish an indigent prisoner such transcript without charge. Lane v. Brown, 372 U.S. 477, 483 (1963). Federal Rule of Criminal Procedure 6(e) governs the disclosure of grand jury proceedings, in relevant part, "preliminarily to or in connection with a judicial proceeding[.]" Fed. R. Crim. P. 6(e)(3)(E)(i). However, the decision rests in the discretion of the Court. Douglas Oil Co. of Ca. v. Petrol Stops Nw., 441 U.S. 211, 228 (1979); In re Grand Jury Proceedings GJ-76-4 & GJ-75-3, 800 F.2d 1293, 1299 (4th Cir. 1986).
The other exceptions are inapplicable in Petitioner's situation.
Rule 60(b) of the Federal Rules of Civil Procedure governs when relief from a court's judgment may be granted in a civil case. Fed. R. Civ. P. 60(b). Rule 60(b) may offer relief to a party who has filed a habeas petition pursuant to 28 U.S.C. § 2255, because such a petitioner initiates a civil matter within the ambit of the Federal Rules of Civil Procedure. United States v. Winestock, 340 F.3d 200, 206-07 (4th Cir. 2003). The Rule, however, may only be used to challenge the collateral review process—that is, the manner in which the § 2255 petition was handled by the Court—and not the merits of the underlying judgment. Id. at 207. A motion under Rule 60(b) must be filed "within a reasonable time" after the entry of the judgment. Fed. R. Civ. P. 60 (c)(1). If such a motion is filed beyond a reasonable time, it may be denied as untimely. See McLawhorn v. John W. Daniel & Co., 924 F.2d 535, 538 (4th Cir. 1991) (denying a Rule 60 motion as untimely when filed less than four months after the entry of summary judgment). If there is a delay, the movant must make a showing of why the motion is timely. Id.
III. ANALYSIS
a. Grand Jury Motion
Petitioner has moved the Court to order the Government to allow him "to inspect and copy of [sic] photograph the text or transcript or copies therefore of the record where the government addresses the violation of petitioner, Mr. Anderson violating or affecting Interstate Commerce to the Grand Jury." Doc. 99 at 2. Petitioner states that he needs this "to perfect his claims to his future Civil Action in this court." Id. at 4. However, he does not inform the Court what this future action is.
The Supreme Court has consistently recognized "that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." Douglas Oil, 441 U.S. at 218. Thus, under Rule 6(e), a private party must show (1) "that the material they seek is needed to avoid a possible injustice in another judicial proceeding," (2) "that the need for disclosure is greater than the need for continued secrecy," and (3) "that their request is structured to cover only material so needed." Id. at 222. Such need must be shown with particularity, which often occurs when the transcript is used "at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like." United States v. Proctor & Gamble Co., 356 U.S. 677, 682-83 (1958); see also In re Grand Jury Proceedings, 800 F.2d 1292-93.
Petitioner is seeking the grand jury transcripts in relation to a "judicial proceeding" unrelated to his criminal action, and thus falls within Rule 6(e)(3)(E)(i). See United States v. Loc Tien Nguyen, 314 F. Supp. 2d 612, 615 (E.D. Va. 2004) ("the first exception applies only to situations where the judicial proceeding for which disclosure of grand jury material is sought is a judicial proceeding different from the criminal trial authorized by the grand jury's indictment."); see also United States v. Upton, 856 F. Supp. 727, 752 (E.D.N.Y. 1994) (citing Douglas Oil. 441 U.S. at 222) (noting that Federal Rule of Criminal Procedure 16 "does not provide a basis upon which this court can instruct the government to turn over the grand jury testimony of the witnesses"). Petitioner's Grand Jury Motion references preparation of a "civil complaint," leading the Court to believe he seeks information upon which to file a complaint against the United States for some undetermined cause of action. See Doc. 99 at 3-4. At no point does he reference using any of the material in the course of attacking his criminal conviction.
Petitioner says there is a particularized need because of the complexity of the subject matter, but he also states he was present at the grand jury proceedings. Doc. 99 at 3. Courts that have considered whether comments or conduct of prosecutors before the grand jury warrant disclosure have consistently found that disclosure of grand jury transcripts is not appropriate. See, e.g., United States v. Murray, 751 F.2d 1528, 1533 (9th Cir. 1985); United States v. Egan, 501 F. Supp. 1252, 1264 (S.D.N.Y. 1980). Although these cases address defendants seeking to attack the indictments charging them, the Court finds their logic persuasive in this case as well. Moreover, Petitioner does not allege misconduct, but simply states "pointed comments were made." Doc. 99 at 3. Without more, Petitioner cannot show a particularized need for the transcripts.
Furthermore, there is no "judicial proceeding" pending in which these grand jury transcripts could be used. Although Petitioner contemplates filing some civil action against the Government, this is not enough to warrant disclosure of grand jury transcripts. Fiumara v. Higgins, 572 F. Supp. 1093, 1105-06 (D.N.H. 1983). Moreover, Petitioner pleaded guilty, waiving an attack on his Indictment, and his § 2255 Motion was denied; under similar circumstances, requests for grand jury transcripts have been denied because there can be no other "judicial proceeding" where the materials were needed "to avoid injustice." United States v. Campbell, 324 F.3d 497, 499 (7th Cir. 2003) (per curiam); see also United States v. Calleja, 23 F. App'x 174, 174 (4th Cir. 2002) (per curiam) (affirming the district court's decision denying a prisoner's motion for disclosure of grand jury proceedings to be used in a § 2255 motion filed twelve years after his convictions were affirmed). Accordingly, Petitioner's Grand Jury Motion is DENIED.
b. Rule 60 Motion
Petitioner's Rule 60 Motion asks the Court to reopen his original § 2255 Motion more than twelve years after it was denied. Petitioner argues that relief from judgment is warranted because the Court overlooked a "significant claim of ineffective assistance of counsel." Doc. 100. Petitioner argues that this ineffective assistance of counsel claim regarding the failure to timely inform him of a more favorable plea offer was raised in his original motion, but was not discussed in the supporting memorandum, and thus was overlooked by the Court, as the Court's Order denying the motion did not address the claim. Doc. 101 at 2.
The Court construed the Rule 60 Motion as a successive § 2255 Motion. Doc. 104. Petitioner has opted to proceed under Rule 60, because he "seeks adjudication of a claim that was raised, but not addressed by the Court, in the earlier proceedings." Doc. 105 at 1.
Rule 60(b)(6) is a catchall provision, allowing a party to seek relief from a "final judgment, order, or proceeding" for "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6). "While this catchall reason includes few textual limitations, its context requires that it may be invoked in only 'extraordinary circumstances' when the reason for relief from judgment does not fall within the list of enumerated reasons given in Rule 60(b)(1)-(5)." Athens v. Ingram, 652 F.3d 496, 500 (4th Cir. 2011) (quoting Lilieberg v. Health Servs. Acquistion Corp., 486 U.S. 847, 863 n.11 (1988)). Accordingly, "the motion must be filed 'on just terms,' 'within a reasonable time,' not unfairly prejudice the opposing party through the setting aside of the judgment, and rest upon a meritorious claim or defense." Battle v. United States, No. 2:12cr01, 2013 WL 5913274, at *4 (E.D. Va. Nov. 1, 2013) (quoting Athens, 652 F.3d at 501).
Because Petitioner has chosen to bring his claim only under Rule 60(b)(6), the Court will only address that subsection of the Rule. However, because the Court finds the motion was untimely filed, the holding would be no different had any one of the other five subsections of Rule 60 been asserted by Petitioner.
While "within a reasonable time" is not subject to a bright-line test, it is clear to the Court that waiting over twelve years to file the motion is not "within a reasonable time." Petitioner offers no excuse for his delay other than that "under the unique facts of this case, the Court can and should grant relief pursuant to Rule 60(b)(6)." Doc. 101 at 3. In a very similar case where a petitioner argued the district court overlooked a claim in a previously filed habeas motion, the Sixth Circuit found that waiting ten years to file the Rule 60 motion rendered the motion untimely. Tyler v. Anderson, 749 F.3d 499, 510 (6th Cir. 2014). Moreover, the Fourth Circuit has found Rule 60 motions not brought within three to four months to be untimely. McLawhorn, 924 F.2d at 538. Thus, Petitioner's Rule 60 Motion is DENIED as untimely.
Although not argued by Petitioner in his Rule 60 Motion, Petitioner did bring this claim before the Court in his first motion for reconsideration filed on October 23,2000. However, he did not present this particular claim in the context of the Court overlooking it in his initial § 2255 motion, but combined it with other additional grounds as to why counsel was ineffective. Doc. 55. Accordingly, the Court denied it, believing it to be an attempt to file a second or successive § 2255 motion. Doc. 58. Thus, even if the Court's failure to consider the claim in that motion excuses part of Petitioner's delay, it still does not alleviate the almost thirteen year delay in bringing the instant motion.
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IV. CONCLUSION
For the reasons stated herein, Petitioner's Grand Jury Motion, Doc. 99, and Rule 60 Motion, Doc. 100, are DENIED. Accordingly, Petitioner's Motion to Expedite, Doc. 103, is DENIED as moot.
Finding no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural issue, a certificate of appealability is also DENIED.
Petitioner is ADVISED that he may appeal this Order by forwarding a written notice of appeal to the Clerk, United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510. Said written notice must be received by the Clerk within sixty (60) days from the date of this Order. To proceed in forma pauperis on appeal, Petitioner must submit an application to proceed in forma pauperis to the Clerk, United States Court of Appeals for the Fourth Circuit, 1100 E. Main Street. Richmond, Virginia 23219.
The Clerk is REQUESTED to mail a copy of this Order to Petitioner and to counsel of record for the United Stales.
It is so ORDERED. Norfolk, Virginia
September 4, 2014
/s/_________
Henry Coke Morgan, Jr.
Senior United States District Judge