The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
STEVEN EUGENE PASSMORE,
Petitioner,
vs. Case No.: 3:07-cv-132-J-32PDB
3:96-cr-20-J-32PDB
UNITED STATES OF AMERICA,
Respondent.
___________________________________/
ORDER
This case is before the Court on Petitioner Steven Eugene Passmore’s second
motion for relief from judgment under Fed. R. Civ. P. 60(b). (Civ. Doc. 23, Second Rule
60(b) Motion).1 For the reasons below, the motion is due to be denied as repetitious
and untimely.2
In September 1998, Petitioner pled guilty to one count of conspiracy to
distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846 (Count One of the
Second Superseding Indictment), and one count of money laundering, in violation of
18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (Count Two of the Second Superseding Indictment).
1 Citations to the record in the criminal case, United States vs. Steven Eugene
Passmore, No. 3:96-cr-20-J-32PDB, will be denoted “Crim. Doc. __.” Citations to the
record in the civil 28 U.S.C. § 2255 case, No. 3:07-cv-132-J-32PDB, will be denoted
“Civ. Doc. __.”
2 As relevant here, Rule 60(b) provides that “[o]n motion and just terms, the court
may relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons: … (4) the judgment is void; … or (6) any other
reason that justifies relief.” Fed. R. Civ. P. 60(b)(4), (6).
(Crim. Doc. 117, Plea Agreement). Petitioner moved to withdraw his guilty plea a few
months later (Crim. Doc. 129), but the Court denied the motion (Crim. Doc. 132). In
1999, the Court sentenced Petitioner to 360 months in prison as to Count One and 240
months in prison as to Count Two, both terms to run concurrently. (Crim. Doc. 139,
Judgment). Petitioner appealed the judgment, arguing (among other things) that the
Court erred in denying his motion to withdraw the guilty plea “because his plea was
the result of improper threats and coercion by both his attorneys and the
Government.” (Crim. Doc. 150, USCA Opinion at 3). On October 27, 1999, the Eleventh
Circuit rejected each of Petitioner’s arguments and affirmed his conviction and
sentence. Id. at 1, 3, 17.
More than seven years later, on January 25, 2007, Petitioner filed a counseled
motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Civ. Doc. 1, §
2255 Motion; Civ. Doc. 2, Counseled Memorandum; Civ. Doc. 2-2, Pro Se
Memorandum). In Ground One, Petitioner argued that
the lower court violated his Fifth Amendment right to a jury trial and his
Sixth Amendment right to proof beyond a reasonable doubt as required
by United States v. Booker and United States v. Fanfan, 125 S. Ct. 738
(2005)[,] when the lower court enhanced Mr. Passmore’s sentence based
upon a finding it alone made based on a preponderance of the evidence
that Mr. Passmore had possessed a dangerous weapon during the
commission of an offense when that finding should have been made by a
jury after having been proved to them beyond a reasonable doubt.
(Civ. Doc. 1 at 3). In Ground Two, Petitioner raised a bevy of other claims, including
that the indictment did not allege the drug quantity involved and that there were
various irregularities in the plea process. Id. at 4. The Court denied the § 2255 Motion
as untimely, and noted that Petitioner could not rely on Booker and Fanfan to render
the motion timely under 28 U.S.C. § 2255(f)(3) because “the Eleventh Circuit has made
clear that the Apprendi/ Blakely/ Booker line of cases and the reasoning underlying
those cases does not apply retroactively to cases on collateral appeal.” (Civ. Doc. 5,
Order Denying § 2255 Motion at 2) (citing Varela v. United States, 400 F.3d 864, 868
(11th Cir. 2005); Chavarry v. United States, 129 F. App’x 599 (11th Cir. 2005)).
Petitioner appealed the denial of § 2255 relief (Civ. Doc. 6, Notice of Appeal), but on
October 10, 2007, the Eleventh Circuit Court of Appeals denied Petitioner a certificate
of appealability (COA), thereby affirming this Court’s order (Civ. Doc. 9, First USCA
Order Denying COA).
Dissatisfied with the result, nearly two years later Petitioner moved to have the
presiding judge (the Honorable Harvey Schlesinger) recused or disqualified (Civ. Doc.
10), and filed his first motion for relief from judgment under Fed. R. Civ. P. 60(b) (Civ.
Doc. 11, First Rule 60(b) Motion). Citing Rules 60(b)(4) and 60(b)(6), Petitioner claimed
that the Court should revisit the order denying § 2255 relief because the Court violated
Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992), by not addressing the issues raised in
Ground Two. The Court denied both the motion to disqualify and the First Rule 60(b)
Motion, explaining that it did not review the merits of the claims in Ground Two
because they were time-barred. (Civ. Doc. 13, Order Denying First Rule 60(b) Motion).
Petitioner then filed a motion under Fed. R. Civ. P. 59(e) for reconsideration of that
order (Civ. Doc. 15, Rule 59 Motion), which the Court also denied (Civ. Doc. 19).
Next, Petitioner appealed the denial of the First Rule 60(b) Motion and the
motion to disqualify. But in a substantive 4-page order entered on March 4, 2010, the
Eleventh Circuit Court of Appeals denied Petitioner a COA yet again. (Civ. Doc. 22,
Second USCA Order Denying COA). The Eleventh Circuit explained:
Contrary to Passmore’s suggestion, the district court properly denied the
Rule 60(b) motion, as his § 2255 motion was untimely under the one-year
statute of limitations and the original judgment denying habeas relief did
not violate Clisby. Specifically, the district court did not violate Clisby’s
directive “to resolve all claims for relief … regardless of whether habeas
relief is granted or denied.” Clisby, 960 F.2d at 936. While the district
court did not specifically discuss the merits of the claims raised in
Passmore’s second ground for relief, it resolved those claims in finding
that the § 2255 motion, as a whole, was untimely.
Id. at 2. The Eleventh Circuit also recognized that, although Petitioner contended that
this Court lacked subject matter jurisdiction to sentence him because the guilty plea
was void, that claim had not been presented below, and “even if Passmore had fairly
presented the argument in his Rule 60(b) motion, such a motion may not be used to
challenge mistakes of law that could have been raised on direct appeal.” Id. (citing Am.
Bankers Ins. Co. of Fla. v. N.W. Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999)).
Eight and a half years after the Eleventh Circuit entered the above order,
Petitioner filed the pending Second Rule 60(b) Motion and the case was transferred to
the undersigned. Citing Rule 60(b)(4), Petitioner claims once again that the Court
should reconsider the 2007 order denying § 2255 relief because the Court did not
resolve the claims raised in Ground Two of the § 2255 Motion. (Civ. Doc. 23 at 1-2). In
particular, Petitioner insists that the Court should have addressed his claim that the
Court lacked jurisdiction to sentence him because the plea colloquy violated Fed. R.
Crim. P. 11.
This argument is repetitious because it has been rejected already by this Court
(Civ. Doc. 13) and the Eleventh Circuit Court of Appeals (Civ. Doc. 22). As both courts
have explained, this Court did not address the merits of the claims raised in Ground
Two because the § 2255 Motion, as a whole, was untimely. Therefore, the Court
appropriately resolved all claims for § 2255 relief. Additionally, even if Petitioner had
fairly presented his jurisdictional claim in the Second Rule 60(b) Motion, “such a
motion may not be used to challenge mistakes of law that could have been raised on
direct appeal.” (Civ. Doc. 22 at 2) (citation omitted).3
In any event, Petitioner’s Second Rule 60(b) Motion is untimely as well. Rule 60
provides that “[a] motion under Rule 60(b) must be made within a reasonable time--
and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or
order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). Petitioner did not file the
Second Rule 60(b) Motion until 11 years after entry of the original order denying the
§ 2255 Motion. Petitioner’s argument is that the 2007 order did not resolve all claims
for relief. A Rule 60(b) motion that raises such an argument more than a decade after
3 Moreover, Petitioner’s claim that a defect in the plea colloquy deprived the
Court of subject matter jurisdiction is wrong. “So long as the indictment charges the
defendant with violating a valid federal statute as enacted in the United States Code,
it alleges an ‘offense against the laws of the United States’ and, thereby, invokes the
district court's subject-matter jurisdiction” under 18 U.S.C. § 3231. United States v.
Brown, 752 F.3d 1344, 1354 (11th Cir. 2014) (citation omitted). Here, Petitioner was
charged with, and pled guilty to, conspiracy to distribute cocaine and cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and money laundering, in violation of 18
U.S.C. §§ 1956(a)(1)(B)(i) and 2 – each one a criminal statute in the United States
Code. (Crim. Doc. 62, Crim. Doc. 117). Thus, the Court had subject matter jurisdiction
to adjudicate Petitioner guilty and to sentence him. Brown, 752 F.3d at 1354.
the fact is obviously not “made within a reasonable time.” Fed. R. Civ. P. 60(c)(1). As
such, the Second Rule 60(b) Motion is untimely as well as meritless.
Accordingly, in light of the foregoing, Petitioner Steven Eugene Passmore’s
Second Rule 60(b) Motion (Civ. Doc. 23) is DENIED. If Petitioner appeals this Order,
the Court denies a COA as well.4
DONE AND ORDERED at Jacksonville, Florida this 9th day of December, 2019.
TIMOTHY J. CORRIGAN
United States District Judge
Le 19
Copies:
Counsel of record
Pro se petitioner
4 This Court should issue a COA only if a petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Petitioner “must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or
wrong, Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 335-36
(2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Upon due
consideration, this Court finds that a COA is not warranted.