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McCurdy v. United States

United States District Court, D. Maine

March 24, 2016

MARK MCCURDY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

In this much-litigated criminal case, the Court affirms the Magistrate Judge’s Recommended Decision on the Petitioner’s multiple motions. Although not all the issues require explanation beyond what the Magistrate Judge has written, the Court addressed three matters raised in his objections: (1) whether Mr. McCurdy’s motion under Rule 60(b) is a successive § 2255 petition by another name; (2) whether that motion, if it were treated as a Rule 60(b) motion, would be timely; and (3) whether the self-styled § 2255 motion is successive. The Court has concluded that none of Mr. McCurdy’s objections requires a result different from what the Magistrate Judge recommended.

I. THE PARTIES’ FILINGS AND THE MAGISTRATE JUDGE’S RECOMMENDED DECISION

The Court has before it a raft of motions. Given the extensive procedural history of this matter, the Court documents only those motions relevant to the present Order.

On October 1, 2014, Mr. McCurdy moved pursuant to Federal Rule of Civil Procedure 60(b) for relief from the Court’s September 27, 2013 order denying his first 28 U.S.C. § 2255 motion. Mot. for Relief from J. (Fed. R. Civ. P. 60(b)) (ECF No. 315) (Rule 60(b) Mot.). On January 14, 2015, the Government responded to Mr. McCurdy’s Rule 60(b) motion. Gov’t’s Opp’n to “Mot. for Relief from J. (Fed.R.Civ.P. 60(b))” (ECF No. 325). On March 16, 2015, Mr. McCurdy replied to the Government’s opposition to his Rule 60(b) motion. Pet’r’s Partial Reply to Gov’t’s Opp’n to Mot. for Relief from J. (Fed. R. Civ. P. 60(b)) (ECF No. 334).

Also on March 16, 2015, Mr. McCurdy filed eight other motions: (1) Mot. for Appointment of Counsel (R. Governing §2255 Proc. 6(a) (ECF No. 335); (2) Mot. for Leave to Conduct Disc. (ECF No. 336); (3) Mot. for Produc. of Docs., Reqs. for Admis. and Proposed Interrogs. Directed to the United States of America (R. Governing §2255 Proc. 6(b)) (ECF No. 337); (4) Mot. for Produc. of Docs., Reqs. for Admis. and Proposed Interrogs. Directed to Jeffrey Silverstein (R. Governing §2255 Proc. 6(b)) (ECF No. 338); (5) Mot. for Produc. of Docs., Reqs. for Admis. and Proposed Interrogs. Directed to the Downeast Community Hospital (R. Governing §2255 Proc. 6(b)) (ECF No. 339); (6) Mot. for Produc. of Docs., Reqs. for Admis. and Proposed Interrogs. Directed to John Rolfe (R. Governing §2255 Proc. 6(b)) (ECF No. 340); (7) Mot. for Produc. of Docs., Reqs. for Admis. and Proposed Interrogs. Directed to John Fuller (R. Governing §2255 Proc. 6(b)) (ECF No. 341); (8) Mot. for Produc. of Docs., Reqs. for Admis. and Proposed Interrogs. Directed to Alan Curtis (R. Governing §2255 Proc. 6(b)) (ECF No. 342). On March 31, 2015, the Government responded to all eight motions in a consolidated opposition. Gov’t’s Consolidated Opp’n to “Mot. for Produc. of Docs., Reqs. for Admis. and Proposed Interrogs.” and “Mot. to Appoint Counsel” (ECF No. 343). On April 15, 2015, Mr. McCurdy replied to the Government’s consolidated opposition. Pet’r’s Reply to Gov’t’s Opp’n to Mots. for Leave to Conduct Disc., Produc. of Docs. and Appointment of Counsel (ECF No. 346).

On May 4, 2015, Mr. McCurdy moved for proposed findings of fact. Pet’r’s Mot. for Proposed Findings of Fact (Fed. R. Civ. P. 52) (ECF No. 347). On May 7, 2015, the Government responded to this motion, Gov’t’s Opp’n to “Pet’r’s Mot. for Proposed Findings of Fact (Fed.R.Civ.P. 52)” (ECF No. 349), and on May 26, 2015, Mr. McCurdy replied to the Government’s opposition. Pet’r’s Reply to Gov’t’s Opp’n to Proposed Findings of Fact (ECF No. 350).

On July 6, 2015, Mr. McCurdy moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Mot. to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody (28 USC § 2255) (ECF No. 351).

The Magistrate Judge filed with the Court his Recommended Decision on all of the above motions on July 28, 2015. Recommended Decision on 28 U.S.C. § 2255 Mot., Mot. for Relief from J., Mot. for Findings of Fact, Mot. for Counsel and Disc. Mots. (ECF No. 352) (Rec. Dec.). Mr. McCurdy filed two objections to the Recommended Decision on August 28, 2015. Pet’r’s Objs. to Magistrate’s Recommended Decision for Relief from J. (Fed. R. Civ. P. 60(b)) (ECF No. 355) (Rule 60(b) Obj.); Pet’r’s Objs. to Magistrate’s Recommended Decision on 28 USC §2255 Mot. (ECF No. 356) (§ 2255 Obj.). On January 8, 2016, Mr. McCurdy moved to expedite proceedings. Pet’r’s Mot. to Expedite Proceedings (28 USC §1657(a)) (ECF No. 365).

II. DISCUSSION

Although the Court concurs with the Magistrate Judge for the reasons stated in the Recommended Decision, it addresses in further detail three issues that Mr. McCurdy has pressed in his objections to the Recommended Decision: (1) whether Mr. McCurdy’s motion under Rule 60(b) is a successive § 2255 petition by another name; (2) whether that motion, if it were treated as a Rule 60(b) motion, would be timely; and (3) whether the self-styled § 2255 motion is successive. In the Court’s view, the remaining issues do not warrant separate discussion.

A. 60(b) Motion

In his objection to the Magistrate Judge’s recommendation on the Rule 60(b) motion, Mr. McCurdy writes that his “claims are true 60(b) claims because they neither challenge the merits of the Court’s §2255 decision nor the criminal conviction; instead, they challenge the integrity of the §2255 proceeding as procedurally flawed.” Rule 60(b) Obj. at 5. He identifies three perceived procedural defects-“the Court’s failure to allow discovery, appoint counsel or conduct an evidentiary hearing”- which, taken together, he believes constitute a Due Process violation. Id. at 4.

The Court is unpersuaded. In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court answered the question of “whether a Rule 60(b) motion filed by a habeas petitioner is a ‘habeas corpus application’ as the statute uses that term.” Id. at 530. While a Rule 60(b) motion that “attacks the federal court’s previous resolution on the merits . . . is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief, ” a Rule 60(b) motion that “attacks, not the substance of the federal court’s resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings” can be properly treated as a Rule 60(b) motion. Id. at 532 (emphasis in original) (footnotes omitted). The distinction is essentially between substance and procedure. While Mr. McCurdy is at pains to cast his Rule 60(b) motion as procedural, Rule 60(b) Obj. at 2-5, the Court agrees with the Magistrate Judge that “the motion for relief from judgment is focused on the substance of [Mr. McCurdy’s] claims of ineffective assistance of counsel.” Rec. Dec. at 11. The Court rejects Mr. McCurdy’s attempt to ...


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