United States District Court, Southern District of Georgia, Statesboro Division
B. AVANT EDENFIELD, JUDGE
Elijah Simmons has filed a motion seeking relief under Federal Rules of Civil Procedure 59(e) and 60(b). ECF No. 12.
Simmons pleaded guilty to conspiracy to possess with intent to distribute controlled substances. ECF No. 6 at 1. Despite waiving both his direct and collateral appeal rights, Simmons appealed to the Eleventh Circuit. Id. at 2. The Eleventh Circuit found that there were no
appealable issues and affirmed Simmons's conviction and sentence. United States v. Simmons, 504 F.App'x 823, 824 (11th Cir. 2013).
Simmons then sought relief under 22 U.S.C. § 2255. ECF No. 1. In his petition, Simmons focused exclusively on the argument that his attorney at sentencing failed to object to a sentencing error, and that his appellate counsel failed to raise the same issue on appeal. Id. at 3. The Magistrate Judge issued a Report and Recommendation ("R&R"), which recommended that Simmons's § 2255 motion be denied. ECF No. 6 at 5. Although Simmons objected, ECF No. 9, the Court adopted the R&R, ECF No. 10.
Simmons's Motion seeks relief under two rules: Rule 59(e) and Rule 60(b).
A. Rule 59(e)
Under Rule 59(e), a party may seek to have a judgment altered or amended. Fed.R.Civ.P. 59(e). However, such a motion "must be filed no later than 28 days after the entry of the judgment." Id. In addition, a Rule 59(e) motion cannot be used "to relitigate old matters, raise argument[, ] or present evidence that could have been raised prior to the entry of judgment." Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).
Here, Simmons filed his Motion on December 17, 2014, which is 30 days after the entry of the judgment. See ECF No. 11. Therefore, his Motion is untimely. But even if the Motion had not been untimely, Simmons raised the same arguments here that he raised in his initial § 2255 petition. See ECF No. 1 at 3-5.
Therefore, Simmons's Motion under Rule 59(e) is dismissed.
B. Rule 60(b)
Under Rule 60(b), the Court may grant a party relief from a judgment or order on the basis that "the judgment is void" or for "any other reason that justifies relief." Fed.R.Civ.P. 60(b)(4), (6); see also Griffin v. Swim-Tech, Corp., 722 F.2d 677, 680 (11th Cir. 1984) ("Motions under the rule are ...