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Delgado v. Secretary, Doc

United States District Court, M.D. Florida, Fort Myers Division

April 17, 2018

ISAAC DELGADO, Petitioner,
v.
SECRETARY, DOC, Respondent.

          OPINION AND ORDER [1]

         This matter comes before the Court on Petitioner's Motion for Reconsideration (Doc. 27). In the motion, Petitioner asks this Court to reconsider its March 1, 2017, Opinion and Order denying his 28 U.S.C. § 2254 habeas petition. Petitioner did not file a timely notice of appeal but instead moved for an extension of time to “file a good faith reconsideration motion.” See Doc. 22 at 1. Petitioner subsequently filed the instant motion pursuant to Rule 60(b) (6) of the Federal Rules of Civil Procedure on October 23, 2017. (Doc. 27 at 1). Petitioner argues that the Court improperly denied grounds one and three of his petition. For the reasons set forth below, the Court denies in part and dismisses in part the motion.

         Legal Standard

         The Eleventh Circuit has explained that Federal Rule of Civil Procedure 60 provides only a limited basis for a party to seek relief from a final order in a habeas proceeding. Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007). Significantly, this Court only has jurisdiction to consider a Rule 60(b) motion if it “attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.” Id. (quoting Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)). Otherwise, if a petitioner “(1) seeks to add a new ground of relief; or (2) attacks the federal court's previous resolution of a claim on the merits, ” then this Court lacks jurisdiction and must construe the Rule 60(b) motion as a successive habeas petition. Id. (internal quotations and citations omitted). Thus, where a petitioner asserts that the court's merit ruling on a ground was in error, he is attempting to relitigate a previous claim that challenges the validity of his conviction and consequently must first move the 11th Circuit for an order authorizing the district court to consider the successive petition. Id.at 1294.

         Analysis

         It is not entirely clear on what basis Petitioner objects to Court's ruling in denying ground one of his petition. The motion refers the Court to pages 9-12 of its Order and Opinion in which the Court opined that a portion of Petitioner's claim was unexhausted and procedurally defaulted and claims that “the court's opinion is hyper technical and fails to consider a Petitioner's pro se pleading should be granted leeway.” Doc. 27 at 1. Petitioner then continues to challenge the Court's merit determination of ground one of his petition. Id. at 2-4.

         To the extent that Petitioner contends that the Court erred in failing to liberally construe his pro se pleading, and/or, improperly found that a portion of ground one of his claim was unexhausted and procedurally barred, the Court finds that Petitioner is challenging the nonmerits aspect of the Court's Opinion and Order. See Gonzalez, 545 U.S. at 534; Williams, 510 F.3d at 1293-94 (noting errors alleging failure to exhaust, procedural default, or statute of limitations are proper under Rule 60). Consequently, the Court will address these aspect of Petitioner's motion.

         Petitioner moves, pursuant to Rule 60(b) (6), for relief. Rule 60(b) (6), the catchall provision of Rule 60(b), authorizes the court to grant relief for “any other reason that justifies relief” from a judgment. Fed.R.Civ.P. 60(b) (6). “[A] movant seeking relief under Rule 60(b)(6) [must] show extraordinary circumstances justifying the reopening of a final judgment.” Gonzalez, 545 U.S. at 535 (internal quotation marks omitted).

         This Court recognizes its mandate to construe pro se pleadings liberally. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Petitioner fails to identify where the Court failed to construe his first ground for relief in his habeas petition liberally. The Court considered Petitioner's petition (Doc. 1) and memorandum of law (Doc. 1, pp. 11-19), in considering all claims for relief and facts in support of such claims that Petitioner was asserting. See Doc. 20 at 1. To the extent that Petitioner contends that the state court failed to liberally construe his Rule 3.850 motion; thus, causing a portion of his ineffective assistance claim to be unexhausted, the Court finds this claim to be without merit as Petitioner was represented by counsel on his collateral Rule 3.850 motion, and supplemental motion, and the appeal thereof. Doc. 17, Exhs. 7, 9, and 14.

         As noted supra, the Court determined that a portion of Petitioner's first ground for relief raised in his petition was unexhausted and procedurally barred.[2] Doc. 20 at 10. More specifically, the Court found that Petitioner had not previously assigned fault to trial counsel “for not moving for a continuance” in his state post-conviction motions. Id. The Respondent raised this objection in its Response. Doc. 14 at 17. In his Reply (Doc. 17), Petitioner did not contend that he had asserted ineffectiveness due to Petitioner's failure to move for a continuance, nor did Petitioner contend that he had cause for failing to exhaust this portion of his ineffective assistance of counsel claim (Doc. 17). Further, a review of Petitioner's post-conviction motion (Doc. 17, Exh. 7) and supplemental motion (Doc. 17, Exh. 9) reveals that Petitioner, who was represented by counsel, never claimed that trial counsel was ineffective for failing to move for a continuance. Because Petitioner failed to exhaust this portion of his Sixth Amendment claim in the state court, and the time for raising such a claim in the state court was expired, this Court properly determined that it was precluding from federal habeas review. McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005). Thus, the Court finds that Petitioner has not demonstrated extraordinary circumstances to warrant relief under Rule 60(b), and denies Petitioner's motion on this ground.

         With respect to the remaining portion of Petitioner's argument on ground one, the Court finds that it lacks subject matter jurisdiction to consider Petitioner's claims. In particular, Petitioner reasserts a claim of error in his state court conviction-namely that trial counsel was ineffective for failing to investigate and/or call alibi witnesses. This ground attacks the substance of the Court's previous resolution of ground one on the merits and falls within the second and successive category of claims that require Petitioner first to move the 11th Circuit for an order authorizing this Court to consider a successive habeas petition. Thus, the Court is required to dismiss this portion of the motion.

         With regard to ground three, Petitioner “takes issue with the findings” of the Court. Doc. 27 at 4. Again, Petitioner is attempting to relitigate his third ground for relief-that counsel was ineffective for failing to call Petitioner's mother to testify to and introduce pictures that were on her cell phone. After review of the pleadings and the record, including the transcript of the trial, the Court denied this claim on the merits. As a result, the Court finds it is without jurisdiction to review this claim a second time, absent Petitioner obtaining an order from the 11th Circuit and dismisses this portion of the motion.

         Accordingly, it is now

         ORDERED:

1. Petitioner's Motion for Reconsideration (Doc. 27) is DENIED in part and DISMISSED in part as ...

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