United States District Court, S.D. Florida
Andre D. Barbary, Movant,
United States of America, Respondent.
ORDER ON RULE 60(b) MOTION TO VACATE
N. Scola, Jr., United States District Judge
requests that the Court vacate its order adopting Magistrate
Judge White's report and recommendation that
Barbary's § 2255 motion was untimely (ECF No. 17.)
The Government opposes the request. (ECF No. 18.) For the
reasons set forth below, Barbary's motion to vacate is
filed his § 2255 motion on September 4, 2016 (ECF No.
1). ON October 4, 2016 Judge White issued his report,
recommending that the Court deny Barbary's motion (ECF
No. 6). Specifically, Judge White found that Barbary's
motion was untimely, and thus, that Barbary was not entitled
to relief. (Id. at 1, 7.) Barbary filed objections
on October 21, 2016, (Objs., ECF No. 7), in which he argued
that the time for filing the § 2255 motion should have
been tolled. The Court determined that Barbary failed to make
an adequate showing and was therefore not entitled to
equitable tolling, and accordingly overruled his objections,
adopted Judge White's report, and denied the § 2255
motion. (ECF No. 8.)
Barbary filed a Rule 59(e) motion (ECF No. 10), asking the
Court to alter or amend its judgment, arguing for the first
time that his Petition for Writ of Certiorari Rehearing was
actually a “cross-petition” of his
co-defendants' petitions for writ of certiorari. (Mot. at
2, ECF No. 10.) The Court denied the motion because Barbary
did not present any ground to support alteration of its order
adopting the report. (ECF No. 13.)
instant motion, Barbary attempts to argue once again,
pursuant to Rule 60(b)(6) of the Federal Rules of Civil
Procedure, that his § 2255 motion was timely.
to Rule 60, the Court may grant relief from a judgment or
order based upon, among other factors, “mistake,
inadvertence, surprise, or excusable neglect; . . . or any
other reason that justifies relief.” See Fed.
R. Civ. P. 60(b)(1), (6). “By its very nature, the rule
seeks to strike a delicate balance between two countervailing
impulses: the desire to preserve the finality of judgments
and the ‘incessant command of the court's
conscience that justice be done in light of all the
facts.'” Seven Elves, Inc. v. Eskenazi,
635 F.2d 396, 401 (5th Cir.1981) (quoting Bankers Mortg.
Co. v. United States, 423 F.2d 73, 77 (5th Cir.1970)).
is well established, . . . that relief under Rule 60(b)(6) is
an extraordinary remedy which may be invoked only upon a
showing of exceptional circumstances.” Griffin v.
Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984)
(internal citation and quotations omitted); see also
Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1288
(11th Cir. 2000) (“Federal courts grant relief under
Rule 60(b)(6) only for extraordinary circumstances.”).
“Rule 60(b)(6) motions must demonstrate that the
circumstances are sufficiently extraordinary to warrant
relief.” Aldana v. Del Monte Fresh Produce, N.A.,
Inc., 741 F.3d 1349, 1355 (11th Cir. 2014) (internal
quotations and citations omitted). Whether to grant relief
pursuant to Rule 60(b) is ultimately a matter of discretion.
Id. (citing Cano v. Baker, 435 F.3d 1337,
1342 (11th Cir. 2006) (internal citation and quotations
Rule 60 motion is yet another attempt to circumvent the
applicable statute of limitations. In his motion, Barbary
argues, for the first time, that the Court should have
construed his Rule 33 motion for a new trial as a § 2255
motion because he is a pro se litigant, and his
filings should be liberally construed. However, the Court
previously rejected Barbary's attempts to re-characterize
his motions, when it denied his Rule 59(e) motion. Even
though Rule 33 and § 2255 motions overlap to a certain
extent, the Court declines to adopt a position in this case,
or in any other, that would require it to construe a Rule 33
motion as a timely § 2255 motion in the circumstances
that a petitioner's actual § 2255 motion is filed
after the one-year statute of limitations imposed by AEDPA.
See Barnes v. United States, 437 F.3d 1074, 1080
(11th Cir. 2006) (finding that notwithstanding “the
potential pitfalls of permitting similar or identical claims
to be pursued in Rule 33 and § 2255 motions,  we
concluded that the system, as it has been set forth by
Congress, is adequately dealt with by the district courts.
The standards for granting relief . . . are quite different,
but the filing deadlines for each are, and for the time being
remain, independent of one another.”) (internal
citation omitted). Contrary to Barbary's assertion,
Francis v. United States, 615 F. App'x 218, 218
(5th Cir. 2015), does not stand for the proposition that any
post-appeal collateral challenge is presumptively a §
2255 motion. In fact, Francis states only that
§ 2255 is the main vehicle through which to raise a
collateral challenge to a federal sentence. Id.
(citing Tolliver v. Dobre, 211 F.3d 876, 877 (5th
next asks the Court to stack assumption upon assumption, and
in reading his Rule 33 motion properly as a § 2255
motion, urges the Court to find that his otherwise untimely
§ 2255 motion should have been construed as an amendment
of his timely re-characterized § 2255 motion. However,
because the Court declines to re-characterize Barbary's
Rule 33 motion as a § 2255 motion in the first instance,
the Court need not consider the merits of this argument.
procedural history of this case remains unchanged-Barbary
failed to timely file a motion to vacate his sentence, and
has not made a showing of sufficiently “extraordinary
circumstances” to justify granting relief pursuant to
Rule 60(b)(6). Accordingly, Barbary's motion (ECF
No. 17) is denied.