United States District Court, W.D. Missouri, Western Division
ORDER DENYING MOVANT'S SECOND MOTION TO SET ASIDE
D. SMITH, SENIOR JUDGE.
is Movant's Second Motion to Set Aside the Denial of his
28 U.S.C. § 2255 Motion. Doc. #44. For the following
reasons, the motion is denied.
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. 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.
In October 2016, the Supreme Court denied his request, and in
January 2017, the Supreme Court denied Movant's request
previously filed a motion to set aside in July 2017. Doc.
#30. Therein, he argued the Court failed to consider Ground
Four of his section 2255 motion. In October 2017, the Court
denied the motion, finding it was untimely, and even if the
Court deemed the motion timely, it failed on its merits
because the Court considered Ground Four of Movant's
section 2255 motion. Doc. #40.
before the Court is another motion to set aside. Movant now
contends the Court's January 5, 2016 Order should be set
aside because the Court allegedly failed to consider his
claim contained in Ground Three of his section 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 December 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 nearly two years 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 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