Opinion
96 Civ. 9230 (MBM)
October 21, 2003
OPINION AND ORDER
Abraham Stevens moves pursuant to Federal Rule of Civil Procedure 60(b) to set aside a decision entered in 1998, denying his petition pursuant to 28 U.S.C. § 2255 to set aside a judgment of conviction following a guilty plea entered in 1992 to charges contained in indictment 92 Cr. 138. He argues that newly discovered evidence warrants this result, such evidence being that another § 2255 petitioner in the same case prevailed on such a petition. As set forth below, the time for such a motion has long since passed, the more favorable result obtained by Stevens' codefendant cannot be considered newly discovered evidence, and in any event the facts that control Stevens' petition are different from the ones that controlled his codefendant's petition. Therefore, the motion is denied.
I.
Stevens pleaded guilty to a narcotics trafficking charge, and to having used or carried a weapon in relation to that charge in violation of 18 U.S.C. § 924 (c). He entered his guilty plea, as did three other defendants — his brother Alfred Stevens, Kevin Clements and Edward Glover — on July 22, 1992, after a jury had been selected and their trial was about to begin. In 1996, he petitioned inter alia to set aside the weapons charge to which he had pleaded guilty on the ground that his allocution was insufficient to support a conviction by the standard of Bailey v. United States, 516 U.S. 137 (1995). Bailey, decided after the guilty pleas in this case but applicable retroactively, holds that in order for a defendant to be convicted under § 924(c) of having used or carried a firearm in relation to a narcotics trafficking offense, he must do something more than merely have the weapon available should he need it. Id. at 143, 150. Abraham Stevens' petition was denied on the ground that although his allocution was insufficient to support the conviction under Bailey, the record was sufficient to impose liability on him under the vicarious liability theory of Pinkerton v. United States, 328 U.S. 640, 646-48 (1946), because another conspirator, Clements, admitted to having carried the weapon in question and that carrying was reasonably foreseeable to Abraham Stevens inasmuch as he had carried another weapon and was found to have been a leader or organizer of the conspiracy. See Stevens v. United States, 1998 U.S. Dist. LEXIS 853, 96 Civ. 9230, 97 Civ. 0286, 1634 (S.D.N.Y. Jan. 30, 1998).
That statute provides that "any person who, during and in relation to any . . . drug trafficking crime . . . for which the person may be prosecuted in a court of the United States . . . shall, in addition to the punishment provided for such . . . drug trafficking crime — (i) be sentenced to a term of imprisonment of not less than 5 years[.]"
At or about the same time, Glover filed a similar petition, and the government agreed that he should be resentenced because, like Abraham Stevens, his allocution had been insufficient to sustain a conviction after Bailey and, unlike Abraham Stevens, Glover had not been found to have been a leader or organizer of the conspiracy or himself to have carried a weapon. I agreed to set aside Glover's § 924(c) conviction and to resentence him because after Bailey there was basis to doubt his liability even under a Pinkerton theory.
II.
Rule 60(b) provides explicitly that a motion to set aside a judgment or order for newly discovered evidence "which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)" must be made "not more than one year after the judgment, order, or proceeding was entered or taken." The order denying Abraham Stevens' § 2255 petition was entered in early 1998, more than five years ago. Therefore, this motion is time-barred.
Further, the result in Glover's case cannot be called "evidence" in Abraham Stevens' case. It is simply the result in Glover's case and, as set forth below, has no application to Abraham Stevens.
Glover, as noted above, was not found after Bailey to be subject to § 924(c) liability under a Pinkerton theory; Abraham Stevens was. Therefore, the result in Glover's case has no applicability to Abraham Stevens.
For the above reasons, the motion is denied.