United States District Court, D. Kansas
MEMORANDUM & ORDER
W. Lungstrum United States District Judge.
October 3, 2016, the court issued a memorandum and order
dismissing Mr. Jones' § 2255 petition-filed more
than three years after the Circuit's mandate issued-as
untimely. The parties had fully briefed the petition and,
after carefully reviewing the record, the court concluded
that there was no basis to equitably toll the filing
deadline. On October 17, 2016, Mr. Jones filed another §
2255 petition asserting numerous claims of ineffective
assistance of counsel. The court dismissed that petition for
lack of jurisdiction on the grounds that it constituted a
successive petition under § 2255 requiring Circuit
authorization that Mr. Jones had not obtained. The court
declined to transfer that petition to the Circuit because he
had not shown that his claims satisfied the requirements of
§ 2255(h). While Mr. Jones argued that he had
“newly discovered evidence” in the sense that he
had discovered that his counsel was not admitted to practice
law in Kansas at the time he was representing Mr. Jones, the
court explained that such evidence was not sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found Mr. Jones guilty.
matter is now before the court on Mr. Jones' Rule 60(b)
motion for relief from judgment in both cases. In that
motion, Mr. Jones contends that his appointed counsel in his
underlying criminal case committed fraud on the court and
actively deceived Mr. Jones into believing that he was
pursuing a writ of certiorari when in fact he had never filed
the petition. He further contends, for the first time, that
his counsel was not licensed in any state at the time he
represented Mr. Jones and that he actively hid that
information from Mr. Jones and the court. Mr. Jones asserts
that his attorney's conduct is sufficient to justify
reopening Mr. Jones' initial § 2255 petition and
applying the doctrine of equitable tolling to excuse the
untimeliness of that petition. The court ordered a response
from the government and permitted Mr. Jones to reply to that
response. The motion is now ripe for resolution.
court construes Mr. Jones' Rule 60(b) motion as a
“true” Rule 60(b) motion (rather than a
successive § 2255 petition) because Mr. Jones, at this
juncture, is challenging the court's application of the
statute of limitations and not the merits of his conviction.
See Spitznas v. Boone, 464 F.3d 1213, 1215 (10th
Cir. 2006) (explaining that a Rule 60(b) motion is a
“true” 60(b) motion if it “challenges only
a procedural ruling of the habeas court which precluded a
merits determination of the habeas application”). Mr.
Jones expressly seeks relief under Rule 60(b)(6),
which requires a showing of “exceptional
circumstances” warranting “extraordinary”
relief. See United States v. Luke-Sanchez, 327
Fed.Appx. 774, 775 (10th Cir. May 11, 2009). Relief under
Rule 60(b)(6) “will rarely occur in the habeas
context.” Id. at 775-76.
Jones cannot show that he is entitled to relief under Rule
60(b)(6). When it rejected Mr. Jones' equitable tolling
arguments in connection with his initial § 2255
petition, the court emphasized that Mr. Jones had not
suggested that his counsel's conduct was anything more
than mere negligence. In contrast, Mr. Jones now asserts that
he was actively deceived into believing that his counsel was
pursuing a discretionary appeal. These arguments, however,
could have been raised earlier in connection with Mr.
Jones' initial petition. A Rule 60(b) motion is not an
appropriate vehicle to advance new arguments that could have
been raised earlier. Lebahn v. Owens, 813 F.3d 1300,
1306 (10th Cir. 2016); see also Cashner v. Freedom
Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)
(“Rule 60(b)(1) is not available to allow a party
merely to reargue an issue previously addressed by the court
when the reargument merely advances new arguments or
supporting facts which were available for presentation at the
time of the original argument.”).
even if the court were to reach the merits of Mr. Jones'
arguments, those arguments do not warrant relief under Rule
60(b)(6). Mr. Jones asserts that his counsel was not licensed
to practice law during his representation of Mr. Jones. The
record reflects that Mr. Jones' counsel was suspended
from the practice of law by the Missouri Supreme Court in
January 2011. But he was admitted to practice law in this
court through reciprocal agreement with the Western District
of Missouri and there is no evidence that he was unauthorized
to practice law in the Western District of Missouri (or, as a
result, the District of Kansas) at any time during his
representation of Mr. Jones. Moreover, Mr. Jones's
counsel was suspended from the practice of law by the
Missouri Supreme Court just prior to Mr. Jones'
sentencing in this case. Counsel's conduct during the
sentencing phase of this case gave the court no reason to
doubt counsel's fitness to practice law or his attention
to Mr. Jones' case. After that time, counsel for Mr.
Jones vigorously pursued an appeal of this court's denial
of Mr. Jones' suppression motion and the Circuit
obviously had no reason to doubt counsel's attention to
Mr. Jones' case. During the appeal process, counsel
communicated on a regular basis with Mr. Jones-sending
letters enclosing the Notice of Appeal; sending a letter
summarizing the oral argument for Mr. Jones; and then
notifying Mr. Jones when the appeal was denied. Nothing in
the record suggests that Mr. Jones' counsel was anything
other than actively engaged in the pursuit of Mr. Jones'
interests. There is simply no support for Mr. Jones'
suggestion that his counsel was distracted or consumed by his
efforts to hide his suspension from Mr. Jones.
record also does not support Mr. Jones further assertion that
his counsel “actively” hid from Mr. Jones that he
had been suspended by the Missouri Supreme Court. In fact, it
is not clear whether his counsel had actual knowledge of his
suspension such that he would have been trying to hide it
anyway. There is certainly no evidence in the record that
counsel's suspension had any bearing whatsoever on Mr.
Jones's three-year delay in filing his initial §
2255 petition. And even if his counsel misled Mr. Jones into
believing that a petition for certiorari had been filed with
the Supreme Court, Mr. Jones has not demonstrated that it was
reasonable for him to rely on that assurance for nearly 3
years before filing his § 2255 petition. Indeed, the
record reflects that Mr. Jones, no later than May 2015,
believed that his counsel had abandoned him and knew at that
time that his counsel had not filed a petition for
certiorari. See doc. 86. He fails to explain why he
let another year pass before filing his § 2255 petition.
In such circumstances, the court cannot conclude that Mr.
Jones acted diligently in pursing his remedies.
Holland v. Florida, --- U.S. __, 130 S.Ct. 2549, 2562
(2010) (“[A] petitioner is entitled to equitable
tolling only if he shows (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing.”); Penn v. Kline, 348 Fed.Appx. 344,
347 (10th Cir. Sept. 25, 2009) (active deceit does not toll
limitations period indefinitely; once petitioner is no longer
relying on attorney, petitioner cannot be misled by attorney
and continued failure to file will not be excused).
foregoing reasons, the court concludes that Mr. Jones is not
entitled to relief under Rule 60(b)(6).
THEREFORE ORDERED BY THE COURT THAT Mr. Jones' motion for
relief from judgment (doc. 128) is denied.
 No other provisions would appear to
apply to Mr. Jones' motion. Rule 60(b)(3) addresses
misconduct or misrepresentations by an opposing party rather
than a party's own counsel. While Rule 60(d)(3) permits
the court to set aside a judgment for “fraud on the
court, ” the record does not demonstrate that Mr.
Jones' counsel committed fraud on the court by continuing
to represent Mr. Jones even after his suspension from the
Missouri Supreme Court. See Weese v. Schukman, 98
F.3d 542, 552-53 (10th Cir.1996) (describing such fraud as
“only the most egregious ...