UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMB!A

 

 

UNITED STATES OF AMERICA §
v. § Criminal Action No. 03-441-8 (RBW)
ANTHONY RICE, §
Defendant. §
)
Ml‘?M(mMJ__MOPU`I_IO§

Anthony Rice, the defendant in this criminal case, was convicted of one count of
conspiracy to import one kilogram or more of heroin and five kilograms or more of coeaine, and
one count of conspiracy to distribute and possession with intent to distribute one kilogram or
more of heroin, five kilograms or more of cocaine, and tidy grams or more of cocaine base.
Petitioner’s Fed.[ ]Rule Civ.[ ]Proc.[ ]Rule 60(b) Motion to Reinstate His 28 U.S.C. § 2255
Habeas Petition (“Def.’s Mot.” or the “Rule 60(b) motion”) at l-2. The Court sentenced the
defendant to a twenty-year term of incarceration on the first count and a life sentence of
incarceration on the second eount, to be served concurrently. LJ. at 2. Currently pending before
the Court is the defendant’s Rule 60(b) motion, which “petitions this [ ] Court . . . to reinstate
[his] 28 U.S.C. § 2255 motion as well as reconsider [its Order] granting [ ] the government’s
motion to dismiss” that motion, § at 1. Upon careful consideration of the parties’
submissions,l the Court concludes for the reasons set forth below that it must deny the

defendant’s Rule 60(b) motion,

 

' In addition to the filings already identitied, the Court considered the following submissions in rendering its
decision: (l) the United States[’] Opposition to Petitioner’s Federal Rule of Civil Procedure Rule 60(b) Motion
(“Gov’t’s Opp‘n”); (2) the Reply to the United States’ Opposition to Petitioner's Federal Rule of Civil Pro[]cedure
Rule 60(b) Motion (“Def.’s Reply”); and (3) the Motion to Vacatc, Set Aside[,] or Correct Sentence (“Def.’s § 2255
Mot.").

l. BACKGROUND

The Court has previously set forth the factual background underlying the defendant’s
conviction in this case, g United States v. Rice, 227 F. Supp. 3d 82, 83-84 (D.D.C. 2017)
(Walton, J.), M, 727 F. App’x 697 (D.C. Cir. 2018), and therefore will not recite it again here.
The Court will, however, briefly summarize the procedural posture relevant to the pending
motion,

On November 28, 2015, the defendant filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 (2018) (the “§ 2255 motion”). w Def.’s § 2255 Mot. at
l. On January 5, 2017, the Court dismissed the defendant’s § 2255 motion “as untimely because
the defendant filed his motion more than one year after his judgment of conviction became final,
and the defendant [ ] failed to demonstrate extraordinary circumstances to warrant application of
equitable tolling.” M, 227 F. Supp. 3d at 86. On January 17, 2017, the defendant filed a
notice of appeal with the District of Columbia Circuit challenging the Court’s dismissal of his
§ 2255 motion, _Sie Notice of Appeal (Jan. 17, 2017). On January 4, 2018, while the appeal was
pending, the defendant filed his Rule 60(b)(6) motion with this Court. The District of Columbia
Circuit thereafter affirmed this Court’s dismissal of the defendant’s § 2255 motion, g M, 727
F. App’x at 698, but noted that the defendant’s Rule 60(b) motion “raise[d] new evidence of
[Jenifer] Wicks’[s, the defendant’s first postconviction attomey,] never-waived conflict of
interest and its existence at the time she missed the filing deadline for [the defendant’s §] 2255
motion” and “le[fi] it for th[is] [ ] [C]ourt to address in the first instance the significance of that
new evidence of a never-waived conflict [of interest] as warranted,” § at 702. This

Memorandum Opinion addresses the defendant’s Rule 60(b) motion.

 

II. STANDARD OF REVIEW

“Rule 60(b) provides that ‘upon such terms as are just, the [C]ourt may relieve a party . . .
from a final judgment, order, or proceeding’ for any of several specified reasons.” Twelve John
Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988). The Supreme Court has
noted that “Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus
proceedings . . . only to the extent that [it is] not inconsistent with applicable federal statutory
provisions and rules.” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005) (second alteration in
original) (intemal quotation marks omitted).2

Clause (b)(6) of Rule 60 “grants federal courts broad authority to relieve a party from a
final judgment ‘upon such terms as are just,’ provided that the motion is made within a
reasonable time and is not premised on one of the grounds for relief enumerated in clauses (b)(l)
through (b)(5)” of the Rule. MLD_MMO_MT\D, 633 F.3d ll 10, 1116
(D.C. Cir. 2011) (quoting Lileth_Sgr_y§M_CLp_., 486 U.S. 847, 863
(1988)); ge Fed. R. Civ. P. 60(b)(6) (permitting courts to “relieve a party . . . from a final
judgment, order, or proceeding” for “any other reason that justifies relief”). “The Rule does not
particularize the factors that justify relief, but . . . provides courts with authority ‘adequate to

399

enable them to vacate judgments whenever such action is appropriate to accomplish justice.

 

2 The Court notes that “[c]ourts in this District have routinely invoked Gonzalez in denying motions brought under
Rule 60(b) that in substance challenge the merits of a prior decision denying relief under [§] 2255" because such
motions are properly considered as second or successive habeas petitions. United States v. Wilson, 950 F. Supp. 2d
90, 94 (D.D.C. 2013) (collecting cases). l-lowever, “a Rule 60(b) motion that attacks ‘some defect in the integrity of
the federal habeas corpus proceeding,’ for example, ‘denial for such reasons as failure to exhaust, procedural
default, or [the] statute-of-limitations bar,’ should not be treated as a habeas petition.” I_d. (quoting Gonzalez, 545
U.S. at 532 & n.4). Here, because the defendant’s Rule 60(b) motion challenges the Court’s denial of his § 2255
motion based on the Antiterrorism and Eff`ective Death Penalty Act’s (“AEDPA”) statute of limitations bar, the
motion is properly brought under Rule 60(b) and the Court will not treat it has a second or successive § 2255
motion, which would require certification by the District of Columbia Circuit before this Court could consider it.
ge §§ (explaining that “[o]nce a [district] court has adjudicated a defendant’s [§] 2255 motion, any ‘second or
successive’ motion under [§] 2255 must be certified by a panel of the relevant court of appeals” as having met
certain criteria before the district court can consider the motion (citing 28 U.S.C. § 2255(h); ig § 2244(b)(2)).

 

 

L_ilj§wg, 486 U.S. at 863-64 (quoting Klapprott v. United States, 335 U.S. 601, 614-15
(1949)). Although the Court “enjoys a large measure of discretion in deciding whether to grant
or deny a [Rule] 60(b)[(6)] motion,” Randall v. Men'ill meh, 820 F.2d 1317, 1320 (D.C. Cir.
1987), the Supreme Court has held that Rule 60(b)(6) applies only in “extraordinary

circumstances,” Ackermann v. United States 340 U.S. 193, 202 (1950), and “this [Circuit] has

 

cautioned that Rule 60(b)(6) ‘should be only sparingly used,”’ Twelve John Does v. District of
Columbia, 841 F.2d 1133, 1140 (D.C. Cir. 1988) (quoting Good Luck Nursing Home, Inc. v.
M, 636 F.2d 572, 577 (D.C. Cir. 1980)).
III. ANALYSIS
The defendant requests reconsideration of this Court’s denial of his § 2255 motion as
untimely under Rule 60(b)3 for three reasons. First, he argues that the untimely filing of his
§ 2255 motion should have been excused because the Supreme Court’s decisions in MLir_i_ez_\/.

Ryan and Trevino v. Thaler

 

3 lt is not clear to the Court whether the defendant brings his motion under Rule 60(b)(5), Rule 60(b)(6), or both.
The defendant makes a passing reference to “Rules 60(b)(5)(6)” at the conclusion of his motion, §§ Def`.’s Mot. at
34, but does not otherwise indicate anywhere in his submissions under which provision of Rule 60(b) he seeks relief,
see generally i_d_.; Def.’s Reply. However, the defendant’s motion is premised on the argument that, “f`or ‘any other
reason,’ . . . [the] Court could vacate its prior judgment denying § 2255 relief`, if it finds that counsel was indeed
ineffective.” Def.’s Mot. at 21 (emphasis added) (quoting Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001)).
The “any other reason" language in Rodrigt_tez mixrors, and indeed, directly quotes, the language of Rule 60(b)(6),
_see; Rodrig\_xez, 252 F.3d at 201 (“Rodriguez seeks to vacate the judgment under . . . Clause (6) [of Rule 60(b)],
which permits relief for ‘any other reason justifying relief from the operation of the judgment.”’ (quoting Fed. R.
Civ. P. 60(b)(6)); see also Fed. R. Civ. P. 60(b)(6) (permitting amendment of a judgment for “any other reason that
justifies relief’), which, together with the fact that the defendant makes no other reference to clause (5) of the Rule
in his submissions, nor does he cite to any case law relating to that clause, suggests to the Court that the defendant
seeks relief under Rule 60(b)(6), rather than Rule 60(b)(5). Moreover, relief under Rule 60(b)(5) is unavailable to
the defendant because “[t]he Supreme Court has made it clear that Rule 60(b)(5) applies in ordinary civil litigation
where there is a judgment granting continuing prospective relief, such as an injunction, but not in the denial of
federal habeas relief`.” Griffin v. Sec’ya Fla. Dgg’t of`Corrections, 787 F.3d 1086, 1089 (l lth Cir. 2015). Relief
under the other provisions of` Rule 60(b) is also unavailable to the defendant because he does not allege, nor does the
Court perceive, “mistake, inadvertence, surprise, or excusable neglect,” Fed. R. Civ. P. 60(b)(l); “newly discovered
evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule
59(b),” Fed. R. Civ. P. 60(b)(2); “fraud . . . , misrepresentation, or misconduct by an opposing party,” Fed. R. Civ. P.
60(b)(3); or that “the judgment is void,” Fed. R. Civ. P. 60(b)(4). Accordingly, the Coun finds it appropriate to
construe the defendant’s motion as brought pursuant to Rule 60(b)(6),

4

 

provide support for [his] position that a federal habeas court can find cause to
excuse a procedural default where there is a “substantial” claim of ineffective
assistance of trial counsel, where there was no right to counsel during the
post[]conviction review, and where [ ] federal [procedure] effectively requires

[that] ineffective assistance of trial counsel claims [ ] be litigated on initial collateral
review.

Def`.’s Mot. at 23 (first citing Martinez v. Ryan, 566 U.S. l, l3-l7 (2012); then citing Trevino v.
Mer, 569 U.S. 413, 423 (2013)). Seeond, he argues that the Court should have equitably tolled
the statute of limitations as to his § 2255 motion because “Peter Cooper and Jenifer Wicks[, his
postconviction attorneys,] provided ineffective assistance of counsel at the post[]conviction
stage.” Def`.’s Reply at 2. Finally, he argues that the Court should have allowed his § 2255
motion to proceed because his "underlying ineffective assistance of counsel claim [raised in his

§ 2255 motion] is strong.” g at 6. The Court will address each of the defendant’s arguments in
turn.

A. Whether the Court Have Excused the Untimely Filing of the Defendant’s
§ 2255 Motion Under Martinez and Trevino

ln Coleman v. 'l`hompson, the Supreme Court held that “[b]ecause a prisoner does not
have a constitutional right to counsel in state postconviction proceedings, ineffective assistance
in those proceedings does not qualify as a cause to excuse a procedural default.” Davila v.
Davis, 137 S. Ct. 2058, 2062 (2017) (citing Coleman v. Thompson, 501 U.S. 722 (1991)).
In Martinez . . . and Trevino . . . , th[e] [Supreme] Court announced a narrow
exception to Coleman’s general rule. That exception treats ineffective assistance
by a prisoner’s state postconviction counsel as cause to overcome the default of a
single claim_ineffective assistance of trial counsel_in a single context-~where
the State effectively requires a defendant to bring that claim in state postconviction
proceedings rather than on direct appeal.
§ at 2062-63 (citations omitted).
The defendant argues that the Court should have excused the untimely filing of his

§ 2255 motion under Martinez and Trevino because those decisions

 

provide support for [his] position that a federal habeas court can find cause to
excuse a procedural default where there is a “substantial” claim of ineffective
assistance of trial counsel, where there was no right to counsel during the
post[]conviction review, and where [] federal [procedure] effectively requires
ineffective assistance of trial claims to be litigated on initial collateral review.

Def`.’s Mot. at 23.4 The government responds that “[t]he exception carved out by Martinez-

Trevino does not . . . apply to the one-year statute of limitations” of the Antiterrorism and

 

Effective Death Penalty Act (“AEDPA”). Gov’t’s Opp’n at 10. The govemment is correct and
the Court agrees with those courts that have declined to expand the exception recognized in

Martinez and Trevino beyond its initial application.

 

As a preliminary matter, the Court notes that that the defendant improperly characterizes
the untimely filing of his § 2255 motion as a procedural default, when in fact, the statute of
limitations bar-the ground for dismissal of the defendant’s § 2255 motion_and procedural
default are two separate bars to habeas relief.

Although both the doctrine of procedural default and [the] AEDPA’s time bar
prevent a federal court from considering the merits of a habeas claim, they do so
for distinct reasons. Procedural default is grounded in concerns of comity and
federalism. In contrast, [the] AEDPA’s limitations period serves the well-
recognized interest in the finality of state court judgments. Because the two
doctrines implicate different concems, they produce different results in many
instances In deciding whether a petitioner properly filed a state petition for tolling

 

“ The defendant also argues that “[w]hile the . . . Supreme Court has not yet expanded Martinez . . . and Trevino . . .
to include federal habeas claims under § 2255, it has also not foreclosed that possibility.” Def`.’s Reply at 2. The
government responds that “the [ ] Supreme Court has never expanded the reach of [Mart_inez and Trevino] to include
federal habeas claims under § 2255.” Gov’t’s Opp’n at 2. “Martinez and Trevino both involved a state prisoner
seeking relief in federal court under 28 U.S.C. § 2254-_th a federal prisoner pursuing relief under 28 U.S.C.

§ 2255, as here,” and “[e]ven assuming that [the defendant] has raised a debatable issue concerning the general
applicability of Martinez and Trevino in § 2255 proceedings, Martinez’s narrow exception was expressly limited to
establish[ing] cause for a prisoner’s procedural default in raising a claim of ineffective assistance of trial counsel . . .
[and] [the defendant’s] § 2255 motion . . . was denied on a basis other than such procedural default; specifically, . . .
the motion was denied because it was untimely given that it was not filed within one year of [the defendant’s]
conviction becoming final.” United States v. Robinson, _ F. App’x _, _ & n.4, 2019 WL 454140, at *4 & n.4
(10th Cir. Feb. 5, 2019) (third alteration in original) (intemal quotation marks omitted). Because the Court
concludes in this Memorandum Opinion that the procedural default exception recognized in Martinez and 'l`revino
does not apply in the context of the AEDPA’s statute of limitations bar and therefore does not excuse the untimely
filing of the defendant’s § 2255 motion, g Part lll.A., m, the Court need not separately address the “general
applicability of Martinez and Trevino in § 2255 proceedings,” Robinson, _ F. App’x at _, 2019 WL 454140, at
*4.

 

 

 

 

 

 

purposes, a federal court considers such factors as the form of the document, the
time limits upon its delivery, the court and office in which it must be lodged, and
the requisite filing fee. In deciding whether a claim is procedurally defaulted, a
federal court considers whether the state procedural rule at issue was independent
of federal law and whether it was firmly established and consistently applied.
Laurel v. Felker, No. CV 08-1676-MMM (PLA), 2009 WL 393013, at *4 n.lO (C.D. Cal. Feb.
12, 2009) (citations and internal quotation marks omitted). While the District of Columbia
Circuit has not expressly addressed whether the holdings of Mart_inez and w apply in the

AEDPA statute of limitations bar context, “[s]ince Martinez was decided, [other circuits] have

 

repeatedly underscored its narrow scope,” Chavez v. Sec’v. Fla. Den’t of Corrections, 742 F.3d
940, 945 (1 lth Cir. 2014), and concluded that the procedural default exception recognized in
Martinez and Trevino does not excuse untimely filings seeking relief under the AEDPA, m

United states v. Robinson __ i=. App’x _, _, 2019 wL 454140, at *5 (10th cir. Feb. 5, 2019)

 

(“Mr. Robinson cannot avail himself to the holdings of Martinez and Trevino on the question of

 

whether his § 2255 motion was timely.”); Lombardo v. United States, 860 F.3d 547, 561 (7th
Cir. 2017) (“M_artili£z_ arose in the context of procedural default, and established a framework by
which state prisoners could establish cause and prejudice to excuse their procedural default and
thus present claims in a federal habeas petition that they failed to present to the state courts.
However, even state prisoners who meet that standard, and can thus present their claims in
federal court without being procedurally defaulted, must still file their petition in federal court

within the statute of limitations . . . . Martinez said nothing about excusing that independent

 

procedural requirement for either state or federal petitioners.”), cert. denied, 138 S. Ct. 1032
(2018); Shank v. Vanoy, No. 16-30994, 2017 WL 6029846, at *2 (5th Cir. Oct. 26, 2017)
(“Martinez considered whether ineffective assistance of counsel excuses procedural default . . .

[,] not whether it excuses late filing.”); Taylor v. Eppinger, No. 16-4227, 2017 WL 5125666, at

*2 (6th Cir. June 2, 2017) (“Taylor cites only cases holding that ineffective assistance of counsel
in state proceedings may provide cause to excuse procedural default. But that principle is
inapplicable here, where the limitations period is at issue and procedural default is not.”
(citations omitted)); Bland v. Superintendent Greene SCI, No. 16-3457, 2017 WL 3897066, at *1

(3d Cir. Jan. 5, 2017) (“Martinez has nothing to do with the governing statute of limitations and

 

cannot excuse a failure to file within the limitations period.”); Chavez, 742 F.3d at 945

(“emphasiz[ing] that the equitable rule established in Martinez applies only to excusing a

 

procedural default of ineffective-trial-counsel claims, and, for that reason, has no application to
others like the one-year statute of limitations period” (intemal quotation marks omitted)); Ml_i_ig
v. Thomas, 739 F.3d 611, 630 (l lth Cir. 2014) (“[T]he Mart_inez rule explicitly relates to
excusing a procedural default of ineffective-tiial-counsel claims and does not apply to [the]
AEDPA’s statute of limitations or the tolling of that period.”). Accordingly, the Court concludes
that the procedural default exception recognized in Mar_mig and m does not apply in the

context of the AEDPA’s statute of limitations bar, and therefore, Martinez and Trevino do not

 

excuse the defendant’s untimely filing of his § 2255 motion,

B. Whether the Court Should Have Equitably Tolled the Statute of Limitations
Period as to the Defendant’s § 2255 Motion

The defendant argues that the Court should have equitably tolled the statute of limitations
period as to his § 2255 motion based on the allegedly ineffective representation by his
postconviction attomeys, Jenifer Wicks and Peter Cooper. w Def`.’s Mot. at 26-27.
Specifically, he argues that Ms. Wicks’s representation was ineffective because she (l) “fail[ed]
to correctly calculate the filing date for [his] § 2255” motion and (2) “had an unwaivable conflict
of interest pertaining to [his] ineffective assistance of counsel claim,” Def`.’s Reply at 3, because

“she had represented co-defendant [Roland] Bailey at trial,” and although the defendant “had

 

signed a waiver of potential conflict regarding [Ms.] Wicks’[s] representation of him on appeal
. . . , this waiver was limited to the appeal and did not extend to the filing of [his] § 2255”
motion, ig at 4 & n.2. He further argues that Mr. Cooper’s representation was ineffective

because,

[i]n challenging the government’s motion to dismiss, although [Mr. Cooper] raised
equitable tolling, he only provided an affidavit from appellate counsel and not an
affidavit from [the defendant] [and] he [ ] never interviewed [the defendant] about

what had occurred during the one year and [eighteen] days between the denial of

his petition in the Supreme Court and the filing of his [§] 2255 [motion].

Def`.’s Mot. at 26. The Court disagrees with the defendant and declines to reconsider its
dismissal of the defendant’s request to equitably toll the statute of limitations period.

“A limitations period may be subject to equitable tolling where the defendant
demonstrates ‘(l) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely tiling.”’ M, Civ. Action No.
17-2619 (ABJ), 2019 WL 1003412, at *4 (D.D.C. Mar. l, 2019) (quoting Holland v. Florid 560
U.S. 631, 649 (2010)); _se_e _UniLStates_MgDLde, 699 F.3d 499, 504 (D.C. Cir. 2012)
(“hold[ing], in view of HQ_ILL¢ that equitable tolling applies to motions filed pursuant to
§ 2255”). “‘Extraordinary circumstances’ are present only when an ‘extemal obstacle’ beyond

the party’s control ‘stood in [its] way’ and caused the delay.” Lombardo, 860 F.3d at 552

(alteration in original) (quoting Menominee Indian Tribe of Wis. v. United States, 136 S. Ct.

 

750, 756 (2016)).
To the extent that the defendant argues that the Court should make an exception to the
extraordinary circumstances requirement for ineffective assistance of counsel claims, the Court

must reject that argument for the reasons explained by the Seventh Circuit in Lombardo. ln

 

Lombardo the defendant argued that the court “should create an exception to [the extraordinary

circumstances] element for equitable tolling specific to claims of ineffective assistance of trial
counsel” and “hold that for such claims, [ ] petitioner[s] can establish extraordinary
circumstances by showing that (1) they had no postconviction counsel or their counsel was
ineffective, and (2) their underlying claim has ‘some merit.’” Lombardo, 860 F.3d at 555. The
Seventh Circuit rejected this argument, reasoning that adopting this framework “would greatly
erode the statute of limitations,” g at 559, because

every petitioner whose ineffective-assistance claim wouldn’t already fail on other

grounds will have established extraordinary circumstances That would effectively

transform the statute of limitations into a mere safe-harbor provision, as petitioners

could still file their ineffective-assistance claim at any time so long as they have

exercised reasonable diligence Equity does not require, and precedent does not

permit, such an undermining of the congressionally enacted statute of limitations.
I_d. at 560-61. The Court finds the Seventh Circuit’s reasoning persuasive and declines to apply
an exception to the extraordinary circumstances requirement for ineffective assistance of counsel
claims.

In any event, the defendant’s claims of allegedly ineffective representation by his
postconviction attomeys, Ms. Wicks and Mr. Cooper, do not constitute extraordinary
circumstances sufficient to warrant equitable tolling. As to Ms. Wicks’s miscalculation of the
§ 2255 Hling deadline, the District of Columbia Circuit has already concluded that this error did
not amount to an extraordinary circumstance, g R_ic§, 727 F. App’x at 701 , and the Court
cannot revisit the Circuit’s ruling. As to Ms. Wicks’s allegedly unwaivable conflict of interest,
the defendant argues that “[w]hile [he] may not have been entitled to a lawyer as a federal habeas
petitioner, he was led to believe [that] he was and that Ms. Wicks would be providing that
service,” Def`.’s Reply at 5-6, which “rises to the level of a [District of Columbia] Rule of

Professional Conduct 8.4(d) violation for engaging in conduct that seriously interferes with the

administration of justice,” g at 6. The defendant does not explain, nor can the Court discem,

10

how Ms. Wicks’s alleged conflict of interest “caused the delay” in filing his § 2255 motion,

 

Lombardo 860 F.3d at 552 (emphasis added); B Blue v. Medeiros, 913 F.3d l, 8 (lst Cir.

 

2019) (“It is up to the petitioner to establish ‘a causal relationship between the extraordinary
circumstances on which the claim for equitable tolling rests and the lateness of his filing,”’
(quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). The Court therefore concludes
that Ms. Wicks’s purported conflict of interest also does not establish a basis for the Court to
equitably toll the statute of limitations as to the defendant’s § 2255 motion, And, as to Mr.
Cooper’s allegedly ineffective representation, because this conduct occurred alier the § 2255
filing deadline was missed, the defendant cannot also “establish a ‘causal relationship between
[Mr. Cooper’s conduct] and the lateness of the filing,”’ M, 913 F.3d at 8 (quoting Valverde,
224 F.3d at 134). Therefore, the Court also concludes that Mr. Cooper’s conduct does not
provide a basis for the Court to equitably toll the statute of limitations as to the defendant’s
§ 2255 motion.5 Accordingly, the Court concludes that the defendant has failed to demonstrate
that the circumstances of his case warrant equitable tolling of the AEDPA’s statute of limitations
period.
IV. CONCLUSION

For the foregoing reasons, the Court concludes that the defendant has failed to

demonstrate the extraordinary circumstances necessary to warrant reconsideration pursuant to

Rule 60(b)(6), and thus, it must deny the defendant’s Rule 60(b) motion.6

 

5 Because the Court concludes that it cannot excuse the defendant’s untimely filing of his § 2255 motion, the Court
need not address the merits of the underlying ineffective assistance of counsel claim raised in the motion,

° The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

ll

so oRi)EREi) this L"`a§y oprrii, 2019.

M% Me

RE,GGIE B. wALToN
United States District Judge

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