United States District Court, W.D. Missouri, Western Division
ORDER DENYING MOVANT'S MOTION TO SET ASIDE
D. SMITH, SENIOR JUDGE
is Movant's Motion to Set Aside the Denial of His 28
U.S.C. § 2255 Motion. Doc. #30. For the following
reasons, the motion is denied.
bench trial, Movant was found guilty of conspiracy to
distribute more than 50 grams of crack cocaine (Count One),
and distribution of crack cocaine (Count Five). Case No.
08-CR-321-03 (Doc. #200). He was sentenced to a mandatory
life sentence for Count One, to run concurrently with a
sentence of 360 months' imprisonment for Count Five.
Id. (Doc. #284). Movant appealed, and on remand,
Movant was resentenced to 240 months' imprisonment on
Count One. Id. (Doc. #370).
2015, Movant initiated this matter, filing a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. Doc. #1. On January 5, 2016, the Court
denied Movant's motion, and denied the issuance of a
certificate of appealability. Doc. #23. Movant appealed the
Court's decision to the Eighth Circuit Court of Appeals,
asking the Eighth Circuit to grant him a certificate of
appealability. Higgins v. United States, Case No.
16-1257. In April 2016, the Eighth Circuit denied
Movant's request. Doc. #28. Movant then filed a petition
for writ of certiorari with the United States Supreme Court.
Higgins v. United States, Case No. 16-6066. In
October 2016, the Supreme Court denied his request, and in
January 2017, the Supreme Court denied Movant's request
before the Court is Movant's motion, filed in July 2017,
asking to set aside the Court's January 5, 2016 Order
denying Movant's section 2255 claims. He contends the
Court's Order should be set aside because the Court
allegedly failed to consider one of the grounds for relief in
his 2255 motion.
“court may relieve a party or its legal representative
from a final judgment, order, or proceeding” when the
“judgment is void.” Fed.R.Civ.P. 60(b)(4). A
judgment is void “if the rendering court lacked
jurisdiction or acted in a manner inconsistent with due
process.” Baldwin v. Credit Based Asset Servicing
& Securitization, 516 F.3d 734, 737 (8th Cir. 2008)
Timeliness of Movant's Motion
contends Movant's motion to set aside should be denied
because it was not made within a reasonable time. A Rule
60(b)(4) motion “must be made within a reasonable
time.” Fed.R.Civ.P. 60(c)(1). “What constitutes a
reasonable time is dependent on the particular facts of the
case in question and is reviewed for abuse of discretion.
Watkins v. Lundell, 169 F.3d 540, 544 (8th Cir.
1999) (citation omitted).
Court's January 5, 2016 Order was mailed to Movant when
it was filed. He does not argue he did not receive it shortly
after January 5, 2016. The basis for Movant's current
motion - i.e., the Court's alleged failure to address one
of the grounds for relief in his section 2255 motion - was
readily apparent on the face of the Order when it was issued.
Yet, Movant waited more than eighteen months to file this
motion seeking to set aside that Order. Nothing prevented him
from filing his current motion until July 2017. Accordingly,
the Court finds Movant's motion was not made within a
reasonable time. See, e.g., Rosas v.
United States, No. 07-4097, 2011 WL 4015590, at *4 (N.D.
Iowa Sept. 9, 2011) (finding a Rule 60(b) motion was not made
within a reasonable time when the petitioner waited one year
and ten months to file his motion when the basis of the
claims were readily apparent when the court issued the order
petitioner challenged); United States v. McAdory,
No. 05-6092, 2011 WL 2580102, at *2 (D. Minn. June 29, 2011)
(finding a Rule 60(b) motion was not brought within a
reasonable time when the petitioner waited two years to file
his motion based upon an argument that was readily apparent
when the order sought to be set aside was issued). For this
reason, Movant's motion is denied.
Merits of Movant's Motion
the Court were to deem the pending motion timely, Movant
failed to present extraordinary circumstances for disturbing
the Court's January 5, 2016 Order. “Relief under
Rule 60(b) is an extraordinary remedy, since exceptional
circumstances must exist to justify intrusion into the
sanctity of a final judgment.” Watkins, 169
F.3d at 544 (internal quotations and citations omitted).
“In the habeas context, such extraordinary