United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
United States of America brought this denaturalization
action, seeking to revoke and set aside defendant Ernest
Njagi Muthara's citizenship and cancel his Certificate of
Naturalization. This court conducted a bench trial and
entered judgment against defendant in January 2018. Defendant
appealed, and the Tenth Circuit affirmed the decision in
November 2018. In January 2019, defendant filed a Rule 60
Motion for Relief from Judgment (Doc. 58). Defendant claims
that the judgment is void because the statute of limitations
had run before plaintiff filed its complaint. The court
disagrees, and denies defendant's motion.
asks the court to set aside judgment on several overlapping
bases: (1) under Rule 60(b)(4), because the statute of
limitations barred the action, so the judgment is void; (2)
under Rule 60(b)(6), because his counsel was ineffective for
failing to raise the statute of limitations, as well as other
arguments at trial and on appeal; and (3) under Rule
60(b)(1), because counsel's failure to raise the statute
of limitations was due to mistake, inadvertence, surprise, or
Rule 60(b)(4) does not offer plaintiff relief because the
judgment is not void. This case is not barred by the statute
of limitations. The court recently reaffirmed that the
statute of limitations does not apply in denaturalization
actions, and nothing in Kokesh v. Securities &
Exchange Commission, 137 S.Ct. 1635 (2017),
changes that outcome. See United States v. Afak
Malik, No. 15-9092-CM-TJJ, Doc. 203. The court hereby
incorporates the rationale applied in Malik, and
denies any relief based on the statute of limitations.
Rule 60(b)(6) does not offer relief for claims of ineffective
assistance of counsel. “The general rule in civil cases
is that the ineffective assistance of counsel is not a basis
for appeal or retrial.” Nelson v. Boeing Co.,
446 F.3d 1118, 1119 (10th Cir. 2006) (citation omitted).
“If a client's chosen counsel performs below
professionally acceptable standards, with adverse effects on
the client's case, the client's remedy is not
reversal, but rather a legal malpractice lawsuit against the
deficient attorney.” Id. (citation omitted);
see also Beaudry v. Corr. Corp. of Am., 331 F.3d
1164, 1169 (10th Cir. 2003) (“Counsel's
performance, however deficient, would not . . . form the
basis for reversal of the trial court.”); Hudelson
v. Cowdry, 3 Fed.Appx. 845, 847 (10th Cir. 2001) (noting
that there is no constitutional right to effective assistance
in civil cases; a plaintiff's “remedy for any
alleged incompetence by his counsel is through a malpractice
action against counsel, not through any relief from the
judgment in this case”). Although this rule has a
narrow exception found in immigration cases, the limited
exception has been recognized in removal actions or
deportation proceedings in immigration court-not
denaturalization actions. See, e.g. Osei v.
Immigration & Naturalization Serv., 305 F.3d 1205,
1208 (10th Cir. 2002). In any event, even if the court were
to consider the merits of defendant's claims of
ineffective assistance for counsel's various decisions
before, during, and after trial, defendant has not
established prejudice as required by Strickland v.
Washington, 466 U.S. 668, 685 (1984).
Rule 60(b)(1) also does not provide relief. As noted above,
this case is not barred by the statute of limitations. And
Rule 60(b)(1)'s offer of relief for mistake or excusable
neglect does not extend to alleged ineffective assistance.
McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt,
Inc., 298 F.3d 586, 593 (6th Cir. 2002); see also
Rose v. Bonnet, 402 Fed.Appx. 226, 228 (9th Cir. 2010)
(finding counsel's calendaring mistakes and ignorance of
the law in failing to file a timely opposition to a motion
did not establish valid grounds for relief under 60(b)(1)
(citation omitted)); Aponte v. City of N.Y. Dep't of
Corr., 377 Fed.Appx. 99, 100 (2d Cir. 2010) (“The
district court did not abuse its discretion by denying
Appellant's Rule 60(b) motion for reconsideration because
it was premised on the legal malpractice of counsel and not
the merits of the underlying litigation.”); Pelican
Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir.
1990) (“[C]arelessness by a litigant or his counsel
does not afford a basis for relief under Rule
60(b)(1).”). Defendant has not met his burden to plead
and prove mistake or excusable neglect such that the court
should vacate judgment.
has not shown that he is entitled to relief under any
provision of Rule 60(b).
IS THEREFORE ORDERED that defendant's Rule 60
Motion for Relief ...