United States District Court, D. New Jersey
MEMORANDUM AND ORDER
STANLEY R. CHESLER United States District Judge
matter has been opened to the Court by Petitioner's
filing of a motion pursuant to Fed.R.Civ.P. 60(b)(6)
“for an order to preserve his future appellate review
under Johnson v. United States [135 S.Ct. 2551
(2015)]” (ECF No. 1) and a motion seeking miscellaneous
relief. (ECF No. 6.) It appearing that:
Although Petitioner titled his submission “Motion under
Fed.R.Civ.P. 60(b)(6)”, the Clerk's Office docketed
the submission as a motion to vacate, correct or set aside
sentence pursuant to 28 U.S.C. 2255 and stayed the matter
pursuant to Standing Order 16-2. (See ECF No. 1.)
The stay has since expired.
Shortly after he submitted his motion, Petitioner wrote to
the Court stating that the petition should not have been
docketed as a § 2255 motion because his direct appeal
was still pending at the time he filed his petition.
Petitioner stated that “[t]he purpose of my original
petition under Fed.R.Civ.P. 60(b)(6) is only to preserve my
future appellate review, through collateral attack, in light
of Johnson since the Supreme Court held on April 18,
2016 in Welch v. United States[, 136 S.Ct. 1257
(2016)] that Johnson is retroactive . . . .” (ECF No.
2, at 1-2.)
Here, the sole purpose of Petitioner's motion is to
preserve his right to “appellate review” of any
potential Johnson claim, which is not properly
brought pursuant to Rule 60(b). Rule 60(b)(6) is a catch-all
provision that authorizes a court to grant relief from a
final judgment for “any ... reason” other than
those listed elsewhere in the Rule. Cox v. Horn, 757
F.3d 113, 120 (3d Cir. 2014) (citing Fed.R.Civ.P. 60(b)(6)).
The Rule is applicable in civil cases and does not
provide a basis for preserving “future appellate
review” in a criminal case. As such, the Court will
deny the motion and close this case accordingly.
the extent Petitioner believed he had a Johnson
claim, the proper avenue for relief would be a protective
petition under 28 U.S.C. § 2255. Petitioner strenuously
asserts that his submission should not be construed as a
motion pursuant to § 2255. Even if the Court were to
construe the instant motion as a protective petition, it
would be subject to dismissal without prejudice under Rule
2(b) of the Rules Governing Section 2255 Cases, which
requires the movant to (1) specify all the grounds for relief
available to the moving party, (2) state the facts supporting
each ground, and (3) state the relief requested. Id.
Here, Petitioner has not provided any facts in
support of his purported Johnson claim, and merely
surmises that “his case might be affected by
Johnson.” (ECF No. 1, at 3.) For these
reasons, the Court declines to re-construe the motion as a
protective petition under § 2255.
pending before the Court is Petitioner's “Motion to
request for legal materials necessary to pursue collateral
review under 28 U.S.C. § 2255; Request for a standard
form of § 2255; Request for equitable tolling of the
limitations period.” (ECF No. 6.) The Court notes that
Petitioner has filed § 2255 motion, which is dated
August 28, 2017 and was docketed as a new civil action on
September 13, 2017. (See Civ. Act. No. 17-7041). The
Court will therefore deny his request for the § 2255
form as moot. Petitioner's additional requests to (1)
extend the protective order issued in his criminal case,
i.e., Crim. Act. No. 11-208 at ECF No. 174, to his collateral
proceedings and (2) afford him equitable tolling are properly
considered in his pending § 2255 motion. The Court will
therefore direct the Clerk of the Court to docket
Petitioner's submission (ECF No. 6) as a new motion in
Civ. Act. No. 17-7041. The Court will consider
Petitioner's remaining requests in screening
Petitioner's § 2255 motion.
Finally, on September 22, 2017, Petitioner wrote to the Court
to inquire about the status of § 2255 motion, i.e., Civ.
Act. No. 17-7041, and submitted a duplicate copy of his
§ 2255 motion, which was docketed as an Amended Motion
in the instant matter. Because this submission relates to the
status of Civ. Act. No. 17-7401, Court will direct the
Clerk's Office to docket this submission (ECF No. 9) in
Civ. Act. No. 17-7041.
Because the Court has closed this matter, future submissions
related to Petitioner's pending § 2255 motion shall
be captioned 17-7041 and docketed in Civ. Act. No. 17-7041.
THEREFORE, on this 2nd day of November, 2017,
ORDERED that the motion for relief under Fed.R.Civ.P.
60(b)(6) is DENIED as improperly filed; and it is further
that the Clerk of the Court shall CLOSE this case; and it is
that Petitioner's request for the § 2255 form is
DENIED AS MOOT in light of his subsequent submission of a
§ 2255 motion in Civ. Act. No. 17-7041, which the Court
will screen in due course; and it further
that Petitioner's requests (1) to extend the protective
order issued in his criminal case, i.e., Crim. Act. No.
11-208 at ECF No. 174, to his collateral proceedings and (2)
for equitable tolling with respect to his § 2255 motion
(ECF No. 6) are properly considered in his pending §
2255 motion; as such, the Clerk of the Court shall docket
Petitioner's motion (ECF No. 6) as a new motion in Civ.
Act. No. 17-7041; and it is further
the Clerk's Office shall docket Petitioner's letter
dated September 22, 2017, and the duplicate copy of his
§ 2255 motion (ECF No. ...