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Kelvin Ford v. United States of America

September 24, 2012

KELVIN FORD, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

MEMORANDUM OPINION

SIMANDLE, Chief Judge:

This matter is before the Court on Petitioner Kelvin Ford's motion for relief from a judgment, filed pursuant to Fed. R. Civ. P. 60(b). [Docket Item 36.] Petitioner is a federal prisoner who seeks to challenge this Court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 [Docket Item 26], as well as this Court's denial of Petitioner's motions to alter the denial of his habeas corpus petition, brought under Rules 54(b) and 59(e). [Docket Item 28.] Petitioner, pro se, raises six claims, which he asserts should void this Court's judgments, pursuant to four or more separate subsections of Rule 60(b). [Docket Item 36 at 7.] His six claims are:

(A) The Research And Preparation Stage of My 2255 Petition Was Impeded Due To The Untimeliness Of The Receipt Of My Case File; (B) A Failure To Liberally Construe My Claims; (C) A Failure To Answer and Fully Adjudicate All Claims; (D) My "Motion For Leave To Clarify Claims" In The Court of Appeals Should Have Been Construed As A 60(b) Motion; (E) My 59(e) Motion Should Have Been Construed As A 60(b) Motion to Complete The Record And Clear Any And All Discrepancies And Ambiguities; and (F) Misrepresentation and Prosecutorial Misconduct." [Id.] Because none of Petitioner's claims provide a possible basis for relief under Rule 60(b), the motion will be denied.

The Court finds as follows:

1. As the Court recounted in its Memorandum Opinion of May 26, 2011 [Docket Item 28], a grand jury indicted Kelvin Ford on a four-count superseding indictment for two counts of bank robbery under 18 U.S.C. § 2113(a) (Counts 1 and 3), as well as two counts under 18 U.S.C. § 924(c)(1)(A) and (C) for knowingly and wilfully possessing and brandishing a firearm during the two robberies (Counts 2 and 4). Originally, Count 1 of the superseding indictment included language about possession and brandishing of a firearm, but before trial, the Court granted Petitioner's motion to omit the language from the bank robbery counts which referred to the possession and brandishing of a firearm. The provision of the federal bank robbery statute under which Petitioner was indicted subjects to criminal punishment "[w]hoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property" belonging to any FDIC insured bank. 18 U.S.C. § 2113(a). Federal law also provides for additional criminal punishment for "any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm," and sets a seven-year minimum sentence if the firearm is brandished. 18 U.S.C. § 924(c)(1)(A)(ii). Petitioner was convicted of all four counts on June 6, 2005, and his conviction was affirmed on February 6, 2007, and the Supreme Court declined to hear his appeal on October 1, 2007.

2. Petitioner filed a petition for writ of habeas corpus, making a number of interrelated arguments. [Docket Item 1.] Most of the arguments addressed some aspect of the relationship between § 924(c) and § 2113(a). Among other things, Petitioner noted that after his amendment of the indictment was granted, the government continued to introduce evidence that he possessed and brandished a firearm during the robberies, and Petitioner argued that this conduct was improper since that evidence was no longer necessary to prove the bank robbery counts. The Court denied Petitioner's petition. [Docket Item 26.] Petitioner then filed a motion to alter, amend or void judgment under Rules 54(b) and 59(e) [Docket Item 27], which was denied. [Docket Item 29.]

4. Petitioner sought leave to file an untimely motion for relief from judgment under Rule 60(b), which was docketed on Petitioner's criminal docket No. 04-0562 [Docket Item 92.] The Court granted Petitioner's motion to equitably toll the one-year time limit on filing a motion pursuant to Rule 60(b)(1)-(3). [Docket Item 38.] Petitioner filed this motion for relief under Rule 60(b) on May 22, 2012. [Docket Item 36.]

5. Fed. R. Civ. P. 60(b) provides:

On motion and just terms, the court may relieve a party or its legal representative 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 ...


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