Opinion
Case No. 02-14052-CR-COHN
03-16-2012
UNITED STATES OF AMERICA, v. TREMAINE N. TIMOTHY ,Defendant.
ORDER DENYING RULE 60 RELIEF
THIS CAUSE is before the Court on Defendant Tremaine N. Timothy's "Motion Seeking Relief from a Judgment Order Pursuant to Federal Rules of Civil Procedure Rule 60(b)(6)-(4)" [DE 90]. The Court has considered the motion and is otherwise fully advised in the premises.
As an initial matter, to the extent that Mr. Timothy seeks relief under the Federal Rules of Civil Procedure, the request must be denied because the Federal Rules of Civil Procedure apply only to civil cases. See United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003) (affirming district court's denial of defendant's Rule 60 motion challenging his sentence under § 3582(c)(2)); United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (affirming district court's denial of defendant's Rule 60 motion to set aside a criminal forfeiture imposed as part of his sentence). "[I]t is well-established that the Federal Rules of Civil Procedure do not provide for relief from judgment in a criminal case." United States v. Potts, 329 Fed. App'x 853, 853 (11th Cir. 2008) (citing Fed. R. Civ. P. 1 ("These rules govern the procedure in all civil actions and proceedings . . . ") Regardless, as explained below, Mr. Timothy's motion also fails on the merits.
Mr. Timothy seeks to void the Judgment and Sentence entered on March 26, 2004, based on double jeopardy grounds. Mr. Timothy raised this issue in a pretrial Motion to Dismiss [DE 31] which was referred to the paired magistrate judge for report and recommendation. The magistrate judge issued his report and recommendation [DE 46] on December 19, 2003, finding no double jeopardy violation and recommending that Mr. Timothy's motion to dismiss be denied. No objections to the magistrate judge's report and recommendations were filed, however, the undersigned never ruled on the motion.
On direct appeal, the Eleventh Circuit determined that it was without jurisdiction to hear appeals directly from federal magistrates. See Eleventh Circuit Order [DE 81] at 5. This Court now adopts the well reasoned report of United States Magistrate Judge Frank J. Lynch, Jr. [DE 46], and finds that no grounds exist for granting Mr. Timothy's Rule 60 motion. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant Tremaine N. Timothy's "Motion Seeking Relief from a Judgment Order Pursuant to Federal Rules of Civil Procedure Rule 60(b)(6)-(4)" [DE 90] is DENIED. It is further
ORDERED AND ADJUDGED that Defendant Tremaine N. Timothy's Motion Requesting to Proceed In Forma Pauperis [DE 91] is DENIED as moot, as no filing fee was required here.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, on this 16th day of March, 2012.
_________________
JAMES I. COHN
United States District Judge
Copies provided to:
Counsel of record via CM/ECF
Pro se party via CM/ECF regular mail