ORDER DENYING MOTION FOR RELIEF FROM A JUDGMENT PURSUANT TO RULE 60(b)
THIS CAUSE is before the Court upon Gary Baptiste's Motion for Relief From a Judgment Pursuant to Rule 60(b) [DE 51]. The Court has considered the motion, the Affidavit in Support of Rule 60(b) Motion [DE 50], and the record in this case, and is otherwise fully advised in the premises.
On December 7, 2006, Mr. Baptiste, along with others, was indicted for crimes in connection with a large-scale conspiracy to traffic cocaine. Specifically, Mr. Baptiste was charged with: conspiracy to possess with intent to distribute five or more kilograms of cocaine (Count 1); conspiracy to possess with intent to distribute fifty or more grams of cocaine base (Count 3); and three counts of distribution and possession with intent to distribute five-hundred or more grams of cocaine (Counts 23, 24, and 26).
At trial, the jury found Mr. Baptiste guilty on all charged counts. The jury also returned special verdicts finding that Count 1 involved at least five kilograms of cocaine, Count 3 involved at least fifty grams of crack cocaine, and Counts 23, 24, and 26 each involved more than five-hundred grams of cocaine. On October 30, 2007, the Court sentenced Mr. Baptiste to a term of imprisonment of 324 months followed by a ten-year term of supervised release. Mr. Baptiste appealed directly from his convictions, challenging the denial of his co-defendant's Batson objection,*fn1 the sufficiency of the evidence to support his convictions, and the admission of testimony from officers about the meaning of code words used by participants in the conspiracy. The Eleventh Circuit affirmed the conviction and sentence. See United States v. Pubien, 349 Fed. App'x 437, 474 (11th Cir. 2009).
On or about December 23, 2009, Mr. Baptiste returned to this Court to file his Motion to Vacate Pursuant to 28 U.S.C. § 2255 [DE 1] ("Motion to Vacate"). Mr. Baptiste argued that he received ineffective assistance of counsel because his lawyer did not move to suppress the wiretap evidence based on the Government's failure to comply with the applicable wiretap statutes. See id. On September 3, 2010, United States Magistrate Judge Patrick A. White issued his Report of Magistrate Judge [DE 21], recommending that the Motion to Vacate be denied on its merits because Mr. Baptiste failed to meet his burden to show that his counsel's efforts fell below constitutional standards pursuant to Strickland v. Washington, 466 U.S. 688 (1984). On December 8, 2010, after a de novo review of the Report and Mr. Baptiste's Objections [DE's 27, 28], the undersigned issued an Order Adopting Report of Magistrate Judge [DE 29], overruling Mr. Baptiste's Objections, adopting Judge White's Report, and denying the Motion to Vacate.
On January 3, 2011, the Court denied Mr. Baptiste's Application for Certificate of Appealability [DE 33], and on January 13, 2011, the Court denied Mr. Baptiste's Motion for Reconsideration of the denial of a certificate of appealability [DE 42]. Thereafter, on April 7, 2011, the Eleventh Circuit also denied Mr. Baptiste's request for a certificate of appealability [DE 46]. Now, in the instant motion, Mr. Baptiste requests reconsideration of the Order Adopting Report of Magistrate Judge pursuant to Federal Rule of Civil Procedure 60(b).
Rule 60(b) provides that a court may relieve a party from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...