United States District Court, W.D. Virginia, Roanoke Division
E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE
McKinzie Howard, a federal inmate proceeding pro se, has
filed a "Motion for Relief Under Federal Rules of Civil
Procedure Rule 60(b)," arguing that the dismissal of his
initial motion to vacate, set aside or correct the sentence
under 28 U.S.C. § 2255 should be revisited on the ground
of equitable tolling. After review of the lengthy motion, the
accompanying exhibits, and the record, the court concludes
that the motion must be denied.
pleaded guilty in March of 2009 to possessing more than 50
grams of cocaine base with the intent to distribute (Count
Two) and possessing a firearm in furtherance of a drug
trafficking crime and using and carrying a firearm during and
in relation to a drug trafficking crime (Count Five). The
properly executed plea agreement stated, "I am pleading
guilty as described above because I am in fact guilty."
Plea Agr. 2, ECF No. 65. In exchange for Howard's guilty
plea under this agreement, the government moved for dismissal
of the five other counts in the superseding indictment,
agreed that a base offense level of 32 under § 2D 1.1 of
the United States Sentencing Guidelines was appropriate for
Howard, and agreed not to argue for enhancements of that
level. In executing the plea agreement, Howard also accepted
its provision whereby he waived "all rights, whether
asserted directly or by a representative, to request or
receive from any department or agency of the United States
any records pertaining to the investigation or prosecution of
this case, including without limitation any records that may
be sought under the Freedom of Information Act"
("FOIA waiver"). Id. at 8. At sentencing,
the court granted a two-point reduction for acceptance of
responsibility, giving Howard a sentencing range of 121 to
151 months on Count Two.
2009, the court sentenced Howard to 136 months on Count Two,
to be followed by the statutory, mandatory consecutive
60-month sentence on Count Five, for a total sentence of 196
months in prison. He did not appeal.
filed his first § 2255 motion in September 2012. The
court notified him that the § 2255 motion appeared to be
untimely filed and gave him an opportunity to file any
additional information on the issue of timeliness, which he
did. Ultimately, however, the court dismissed the § 2255
motion under § 2255(f) as untimely filed. United
States v. Howard, No. 7:08CR00023, 2012 WL 5986963 (W.D.
Va. Nov. 29, 2012). Howard did not appeal this judgment.
instant motion, Howard contends that the court should reopen
his initial § 2255 motion, based on evidence he
allegedly could only recently discover because prosecutors
had fraudulently concealed it. His fraudulent concealment
theory is: at arraignment and detention hearings in March
2008, two different prosecutors and a government witness
allegedly misstated the amount of crack cocaine seized during
the investigation of Howard's offenses; the prosecutors
included the FOIA waiver in the plea agreement; and that
provision "prevented" Howard from obtaining
discovery of the fraud that allegedly occurred during the
hearings in March 2008. Based on this alleged intentional
concealment of information, Howard contends that he is
entitled to equitable tolling of the limitations period in
§ 2255(f) and to full consideration of his § 2255
claims on their merits.
contends that his exhibits demonstrate his due diligence in
attempting to obtain documentation in support of his
equitable tolling argument. The exhibits and the record
indicate that in 2014, Howard wrote to the district court,
asking to obtain documentation related to his case. The clerk
responded by sending him some court documents he had
requested, but notified him that other requested information,
related to the government's investigation, was not
available from the court's record. In 2015, Howard asked
a prior attorney for documentation, but the attorney did not
have a copy of the requested document-a lab analysis. In
2016, Howard made a FOIA request for documents from the
Department of Justice ("DOJ"). That request was
denied, based on Howard's plea agreement waiver of FOIA
rights. In response to a subsequent FOIA request Howard made
in March 2018, a DOJ official responded that some requested
documents were exempt from FOIA disclosure for privacy
reasons. Howard signed and dated his Rule 60(b) motion on
August 12, 2019.
Rule 60(b), a party may move to be relieved of a final
judgment under appropriate circumstances. Howard's claim
of fraudulent concealment falls under Rule 60(b)(3), which
authorizes relief from a final judgment where the court finds
"fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing
party." Fed.R.Civ.P. 60(b)(3). A motion under subsection
(3) must be brought "no more than a year after the entry
of the judgment" being challenged. Fed.R.Civ.P.
60(c)(1). As stated, the court entered final judgment on
Howard's § 2255 motion in November 2012, but he did
not file his current motion under Rule 60(b)(3) until August
2019, nearly seven years later. Therefore, the court finds
that his motion must be denied as untimely filed under Rule
contends that, in the alternative, his motion arises under
Rule 60(b)(6). Subsection (b)(6) authorizes a court to grant
relief from final judgment on a motion that (i) states a
"reason that justifies relief," (ii) is not
premised on one of the grounds for relief enumerated in
subsection (b)(1) through (b)(5, ) and (iii) is made
"within a reasonable time." Fed.R.Civ.P. 60(b)(6),
(c)(1). Howard's motion fails under (ii) and (iii),
because it is premised on fraud, the ground for relief named
in subsection (b)(3), and it was not filed within a
reasonable time for purposes of subsection (b)(3).
Howard simply has not stated any reason for relief from the
2012 dismissal of his § 2255 claims as untimely filed.
Specifically, he does not show any basis for applying
equitable tolling so that the court could address the merits
of his 2012 claims under § 2255.
person convicted of a federal offense has one year to file a
§ 2255 motion, starting from ...