PASSMORE

v.

UNITED STATES

This case is before the Court on Petitioner Steven Eugene Passmore’s second motion for relief from judgment under Fed. R. Civ. P. 60(b). (Civ. Doc. 23, Second Rule 60(b) Motion).¹ For the reasons below, the motion is due to be denied as repetitious and untimely.2 In September 1998, Petitioner pled guilty to one count of conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846 (Count One of the Second Superseding Indictment), and one count of money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (Count Two of the Second Superseding Indictment).

In Ground One, Petitioner argued that the lower court violated his Fifth Amendment right to a jury trial and his Sixth Amendment right to proof beyond a reasonable doubt as required by United States v. Booker and United States v. Fanfan, 125 S. Ct. 738 (2005)[,] when the lower court enhanced Mr. Passmore’s sentence based upon a finding it alone made based on a preponderance of the evidence that Mr. Passmore had possessed a dangerous weapon during the commission of an offense when that finding should have been made by a jury after having been proved to them beyond a reasonable doubt.

(Civ. Doc. 1 at 3). In Ground Two, Petitioner raised a bevy of other claims, including that the indictment did not allege the drug quantity involved and that there were various irregularities in the plea process. Id. at 4. The Court denied the § 2255 Motion as untimely, and noted that Petitioner could not rely on Booker and Fanfan to render the motion timely under 28 U.S.C. § 2255(f)(3) because “the Eleventh Circuit has made clear that the Apprendi/ Blakely/ Booker line of cases and the reasoning underlying those cases does not apply retroactively to cases on collateral appeal.” (Civ. Doc. 5,

Order Denying § 2255 Motion at 2) (citing Varela v. United States, 400 F. 3d 864, 868 (11th Cir. 2005); Chavarry v. United States, 129 F. App’x 599 (11th Cir. 2005)). Petitioner appealed the denial of § 2255 relief (Civ. Doc. 6, Notice of Appeal), but on October 10, 2007, the Eleventh Circuit Court of Appeals denied Petitioner a certificate of appealability (COA), thereby affirming this Court’s order (Civ. Doc. 9, First USCA Order Denying COA).

Dissatisfied with the result, nearly two years later Petitioner moved to have the presiding judge (the Honorable Harvey Schlesinger) recused or disqualified (Civ. Doc. 10), and filed his first motion for relief from judgment under Fed. R. Civ. P. 60(b) (Civ. Doc. 11, First Rule 60(b) Motion). Citing Rules 60(b)(4) and 60(b)(6), Petitioner claimed that the Court should revisit the order denying § 2255 relief because the Court violated Clisby v. Jones, 960 F. 2d 925 (11th Cir. 1992), by not addressing the issues raised in Ground Two. The Court denied both the motion to disqualify and the First Rule 60(b)

Motion, explaining that it did not review the merits of the claims in Ground Two because they were time-barred. (Civ. Doc. 13, Order Denying First Rule 60(b) Motion). Petitioner then filed a motion under Fed. R. Civ. P. 59(e) for reconsideration of that order (Civ. Doc. 15, Rule 59 Motion), which the Court also denied (Civ. Doc. 19).

Next, Petitioner appealed the denial of the First Rule 60(b) Motion and the motion to disqualify. But in a substantive 4-page order entered on March⁴, 2010, the Eleventh Circuit Court of Appeals denied Petitioner a COA yet again. (Civ. Doc. 22, Second USCA Order Denying COA).

The Eleventh Circuit explained: Contrary to Passmore’s suggestion, the district court properly denied the Rule 60(b) motion, as his § 2255 motion was untimely under the one-year statute of limitations and the original judgment denying habeas relief did not violate Clisby. Specifically, the district court did not violate Clisby’s directive “to resolve all claims for relief … regardless of whether habeas relief is granted or denied.” Clisby, 960 F. 2d at 936. While the district court did not specifically discuss the merits of the claims raised in Passmore’s second ground for relief, it resolved those claims in finding that the § 2255 motion, as a whole, was untimely.

Id. at 2.

The Eleventh Circuit also recognized that, although Petitioner contended that this Court lacked subject matter jurisdiction to sentence him because the guilty plea was void, that claim had not been presented below, and “even if Passmore had fairly presented the argument in his Rule 60(b) motion, such a motion may not be used to challenge mistakes of law that could have been raised on direct appeal.” Id. (citing Am. Bankers Ins. Co. of Fla. v. N.W. Nat’l Ins. Co., 198 F. 3d 1332, 1338 (11th Cir. 1999)).

Eight and a half years after the Eleventh Circuit entered the above order, Petitioner filed the pending Second Rule 60(b) Motion and the case was transferred to the undersigned. Citing Rule 60(b)(4), Petitioner claims once again that the Court should reconsider the 2007 order denying § 2255 relief because the Court did not resolve the claims raised in Ground Two of the § 2255 Motion. (Civ. Doc. 23 at 1-2).

In particular, Petitioner insists that the Court should have addressed his claim that the Court lacked jurisdiction to sentence him because the plea colloquy violated Fed. R. Crim. P.

11.

This argument is repetitious because it has been rejected already by this Court (Civ. Doc. 13) and the Eleventh Circuit Court of Appeals (Civ. Doc. 22). As both courts have explained, this Court did not address the merits of the claims raised in Ground

Two because the § 2255 Motion, as a whole, was untimely. Therefore, the Court appropriately resolved all claims for § 2255 relief. Additionally, even if Petitioner had fairly presented his jurisdictional claim in the Second Rule 60(b) Motion, “such a motion may not be used to challenge mistakes of law that could have been raised on direct appeal.” (Civ. Doc. 22 at 2) (citation omitted).³ In any event, Petitioner’s Second Rule 60(b) Motion is untimely as well. Rule 60 provides that “[a] motion under Rule 60(b) must be made within a reasonable time-- and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). Petitioner did not file the Second Rule 60(b) Motion until 11 years after entry of the original order denying the § 2255 Motion. Petitioner’s argument is that the 2007 order did not resolve all claims for relief. A Rule 60(b) motion that raises such an argument more than a decade after

Here, Petitioner was charged with, and pled guilty to, conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 – each one a criminal statute in the United States Code. (Crim. Doc. 62, Crim. Doc. 117).

Thus, the Court had subject matter jurisdiction to adjudicate Petitioner guilty and to sentence him. Brown, 752 F. 3d at 1354. the fact is obviously not “made within a reasonable time.” Fed. R. Civ. P. 60(c)(1). As such, the Second Rule 60(b) Motion is untimely as well as meritless.

Accordingly, in light of the foregoing, Petitioner Steven Eugene Passmore’s Second Rule 60(b) Motion (Civ. Doc. 23) is DENIED. If Petitioner appeals this Order, the Court denies a COA as well.⁴ DONE AND ORDERED at Jacksonville, Florida this 9th day of December, 2019.

TIMOTHY J. CORRIGAN

United States District Judge

Le 19 Copies: Counsel of record Pro se petitioner