United States v. DOWLING, ROBERT
1:00-cr-00016
D.V.I.Mar 9, 2011Background
- Dowling, pro se, moves under Rule 60(b)(4) to void his criminal judgment.
- He pled guilty on April 6, 2000 to manufacturing marijuana near a school (Count 1) under 21 U.S.C. § 841(a)(1) and (b)(1)(C) and § 860(a).
- Judgment entered August 16, 2000: 15 months' imprisonment, 6 years' supervised release, $500 fine, $100 special assessment.
- Dowling did not appeal and has not filed habeas petitions; instead he attacks the judgment as void.
- Dowling argues double jeopardy for being charged/punished under both § 841(a)(1) and § 860(a) in the same proceeding.
- The government contends Rule 60(b)(4) does not apply in criminal cases and the proper vehicle is § 2255.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 60(b)(4) can relieve a criminal judgment as void. | Dowling alleges void judgment under Rule 60(b)(4). | Government says Rule 60(b)(4) is civil and inapplicable to criminal judgments. | Not applicable to criminal judgments; denied. |
| Whether the motion is timely and properly characterized as § 2255. | Dowling seeks voiding of judgment via Rule 60(b)(4). | Motion should be § 2255; timely under AEDPA deadlines not met. | Proper vehicle is § 2255, and the motion is time-barred. |
| Whether Dowling's underlying claim shows a constitutional violation (double jeopardy) in charging/conviction. | Charged/punished for two statutes in one proceeding violates Fifth Amendment double jeopardy. | No two separate convictions; no constitutional violation. | No dual conviction; no voiding remedy available. |
| Whether the judgment became final and thus subject to § 2255 timing. | Not provided beyond asserted voidness. | Judgment became final in 2000 when time to appeal expired. | Judgment final in 2000; § 2255 bar applies. |
Key Cases Cited
- Mosavi v. United States, 138 F.3d 1365 (11th Cir. 1998) (Rule 60(b) does not provide relief in criminal cases)
- Fair v. United States, 326 F.3d 1317 (11th Cir. 2003) (Rule 60(b) not applicable to criminal convictions)
- Rojas v. United States, 343 Fed. Appx. 748 (3d Cir. 2009) (Rule 60(b) not appropriate for challenging a criminal sentence)
- Mortimer v. United States, 256 Fed. Appx. 468 (11th Cir. 2007) (Rule 60(b) applies to civil, not criminal cases (per curiam))