United States District Court, S.D. Georgia, Waycross Division
FRANKLIN L. WILLIAMS, Petitioner,
WARDEN F.S.L. JESUP, GA, Respondent.
GODBEY WOOD, CHIEF JUDGE UNITED STATES DISTRICT COURT
before the Court is Petitioner Franklin Williams'
("Williams") Rule 60(b)(2) Motion. Dkt. No. 21. For
the reasons which follow, the Court DENIES Williams'
Court dismissed Williams' 28 U.S.C. § 2241 Petition
on June 17, 2016. Dkt. No. 12. Since that time, Williams has
filed an appeal with the Eleventh Circuit Court of Appeals.
Dkt. No. 13. This Court and the Eleventh Circuit have denied
Williams' Motions to Proceed in Forma Pauperis
on Appeal. Dkt. Nos. 18, 19. Williams, who is nothing if not
stubbornly persistent, has filed the instant Motion pursuant
to Federal Rule of Civil Procedure 60(b)(2).
to Williams, the attorney who represented him during the
criminal proceedings in this Court and in his state habeas
proceedings was his retained counsel to whom Williams paid
$27, 000.00 for representation. Dkt. No. 21, pp. 2-3.
Williams asserts he tried to contact his attorney regarding
the direct appeal for his criminal proceedings in order to
obtain a copy of the Eleventh Circuit's decision.
Id. at p. 4. Williams contends, when he finally
received a copy of the appellate decision, he discovered the
Eleventh Circuit "did not rule on the whole
appeal." Id. at p. 5. Williams also contends
his appellate attorney would not provide copies of his case
file so that Williams could pursue other avenues of relief.
attached to his Motion a copy of this docket sheet and an
excerpt from the Eleventh Circuit's determination on his
direct appeal. He maintains he discovered on September 16,
2016, that his retained counsel had submitted a voucher for
payment through the Criminal Justice Act ("CJA") in
2007, even though he did not request an appointed attorney.
Id. at p. 7. According to Plaintiff, the discovery
of this information clearly indicates he is entitled to
relief due to the fraud his attorney committed. Id.
60(b) permits a district court to "relieve a party or
its legal representative from a final judgment, order, or
proceeding for, " among other things, "newly
discovered evidence that, with reasonable diligence, could
not have been discovered in time to move" for relief
under Rule 59(b). Fed.R.Civ.P. 60(b)(2). This newly
discovered evidence "must be sufficiently material so as
to alter the previous judgment." Whitmire v.
Georgia, No. 2:09-CV-0218, 2010 WL 1489975, at *1
(N.D.Ga. Apr. 13, 2010) (citing Liquidation Comm'n of
Banco Intercontinental, S.A. v. Renta, 530 F.3d
1339, 1358 (11th Cir. 2008)). A Rule 60(b)(2) motion is an
extraordinary motion, and "the requirements of the rule
must be strictly met." Toole v. Baxter
Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir.
2000). "For the court to grant relief based upon newly
discovered evidence under Rule 60(b)(2), a movant must meet a
five-part test: (1) the evidence must be newly discovered
since the trial; (2) due diligence on the part of the movant
to discover the new evidence must be shown; (3) the evidence
must not be merely cumulative or impeaching; (4) the evidence
must be material; and (5) the evidence must be such that a
new trial would probably produce a 6139926, at *1 n.2 (S.D.
Ga. Oct. 21, 2016) (internal citations omitted).
has not met any of the requirements showing he is entitled to
relief pursuant to Rule 60(b)(2). First and foremost,
Williams' assertion that he did not learn of his
attorney's alleged fraud until September 16, 2016, is
completely lacking in credibility. Williams has used excerpts
from the Eleventh Circuit's opinion in his direct appeal
as attachments to his voluminous filings with this Court well
before September 2016. See, e.g., Pet., Williams
v. Bechtold, 5:14-cv-7 (S.D. Ga. Jan. 13, 2014), ECF No.
1, p. 8. Additionally, even if this Court were to consider
this "evidence" to be newly-discovered, Plaintiff
would not have shown due diligence in discovering this
evidence. Williams' own filings reveal that this Court
issued a CJA appointment to appellate counsel on April 26,
2007, dkt. no. 21-5, p. 1, and that the Eleventh Circuit
issued Williams' attorney a CJA appointment of counsel
letter on June 29, 2007, dkt. no. 21-6, p. 3. This
information has been readily accessible through this
Court's and the Eleventh Circuit's records since
those times. Accepting Williams' assertion as true that
he learned of this information in September 2016, Williams
has failed to provide any explanation as to how he could not
have discovered this information in the more than nine
years' time which elapsed from the time the CJA letters
were issued and his discovery of this information. Further,
this "evidence" is cumulative of assertions
Williams has made repeatedly regarding his appellate
counsel's assistance. Finally, not only is this
"evidence" not material, it certainly is not
"sufficiently material so as to alter" the
Court's judgment in this case or in Williams'
criminal case, Case Number 5:06-cr-14.
of these reasons, the Court DENIES Williams' Motion.
 Plaintiff has moved the Court pursuant
to Rule 60(b)(2), on which the Court bases its determination.
However, in the body of his Motion, he indicates his attorney
committed fraud and misconduct. Dkt. No. 21, pp. 1, 7-9. Such
allegations would ordinarily fall under Rule 60(b)(3)
(relieving a party from a final judgment or order for new
result." Williams v. Darden, No. CV 411-213,
2016 WL "fraud . . ., misrepresentation, or misconduct
by an opposing party"). By its very terms, Rule 60(b)(3)
does not apply, as Williams does not allege the Government
engaged in fraud, misrepresentation, or misconduct. Williams
is advised that this ...