SCOTT v. U.S., CR612-018. (2016)
Court: District Court, S.D. Georgia
Number: infdco20160914e53
Visitors: 15
Filed: Sep. 12, 2016
Latest Update: Sep. 12, 2016
Summary: ORDER G. R. SMITH , Magistrate Judge . Movant Rodney Scott moves under 28 U.S.C. 2255 to vacate his conviction and sentence imposed in CR612-018, doc. 1149; see also doc. 1151 at 50 ("Vacate Movant's Conviction and Sentence in this case"). The Court has yet to rule on it. Yet, Scott has filed a motion for relief pursuant to Fed. R. Civ. P. 60(b)(6). Doc. 1273. As Rule 60(b)(6) only authorizes relief from a "final judgment, order, or other proceeding" and there has not yet been any fina
Summary: ORDER G. R. SMITH , Magistrate Judge . Movant Rodney Scott moves under 28 U.S.C. 2255 to vacate his conviction and sentence imposed in CR612-018, doc. 1149; see also doc. 1151 at 50 ("Vacate Movant's Conviction and Sentence in this case"). The Court has yet to rule on it. Yet, Scott has filed a motion for relief pursuant to Fed. R. Civ. P. 60(b)(6). Doc. 1273. As Rule 60(b)(6) only authorizes relief from a "final judgment, order, or other proceeding" and there has not yet been any final..
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ORDER
G. R. SMITH, Magistrate Judge.
Movant Rodney Scott moves under 28 U.S.C. § 2255 to vacate his conviction and sentence imposed in CR612-018, doc. 1149; see also doc. 1151 at 50 ("Vacate Movant's Conviction and Sentence in this case"). The Court has yet to rule on it. Yet, Scott has filed a motion for relief pursuant to Fed. R. Civ. P. 60(b)(6). Doc. 1273. As Rule 60(b)(6) only authorizes relief from a "final judgment, order, or other proceeding" and there has not yet been any final order, judgment, or other proceeding, Scott's motion is premature and must be denied on that basis.1 See Banks v. Sec'y, Florida Dep't of Corr., 491 F. App'x 966, 969 (11th Cir. 2012).
The substance of Scott's Rule 60 motion bespeaks a simple amendment to his § 2255 motion, see doc. 1273 (arguing that telephone conversations introduced at trial violated the confrontation clause and counsel [wa]s ineffective for failing to object to their use at trial),2 which the Court will reach in a forthcoming Report and Recommendation. Otherwise, Movant Rodney L. Scott's Rule 60(b)(6) motion is DENIED as moot.
SO ORDERED.
FootNotes
1. A Rule 60(b)(6) motion is also inappropriate for seeking relief in Scott's criminal case; Federal Rule of Civil Procedure Rule 60(b) does not apply to criminal cases. See United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998).
2. Of course, the Confrontation Clause applies only to "testimonial" statements. Private conversations not made under examination are likely non-testimonial, see United States v. Brown, 441 F.3d 1330, 1359-60 (11th Cir. 2006), so if those statements were properly admitted, a claim for ineffective assistance of counsel is unlikely to succeed.
Source: Leagle
