USA v. Chantharath et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
VIENGXAY CHANTHARATH,
a/k/a "OG,"
Defendant.
)
)
)
)
)
)
)
)
)
)
CR. 10-40004-01-KES
ORDER
Viengxay Chantharath moves (Docket 828) under Rule 60(b) for relief
from the criminal judgment of conviction that has been affirmed by the Eighth
Circuit Court of Appeals. United States v. Chantharath, 705 F.3d 295 (8th Cir.
2013). In the alternative, Chantharath moves to have his motion considered
under § 2255 (Docket 830).
Fed. R. Civil. P. 60(b) is a rule of civil procedure, which applies to civil
proceedings. See Fed. R. Civ. P. 1, 81(a)(4) (stating that the Federal Rules of
Civil Procedure apply to civil actions, which are distinct from § 2255 cases).
“Rule 60(b) may not be used to relieve a party from operation of a judgment of
conviction or sentence in a criminal case.” United States v. Hunt, 2008 WL
4186258 at *1 (E.D. Mo. Sept. 5, 2008); see also United States v. Mosavi, 138
F.3d 1365, 1366 (11th Cir. 1998) (“Rule 60(b) simply does not provide for relief
from judgment in a criminal case . . . .”); United States v. Eggleston, 24 F. App’x
Case 4:10-cr-40004-KES Document 831 Filed 10/17/13 Page 1 of 2 PageID #: <pageID>

656, 656 (8th Cir. 2002) (unpublished) (per curiam) (“[W]e agree with the
district court that Rule 60(b) applies only to civil cases [and not to § 2255
relief].”).
Because Chantharath cannot use Rule 60(b) to obtain relief in his
criminal proceeding, the court will construe his request for relief as a motion
under § 2255. The clerk is directed to open a new matter under § 2255 and
forward the proper draft § 2255 pleadings to Chantharath for completion. It is
ORDERED that defendant’s motion for relief from final judgment (Docket
828) is denied.
IT IS FURTHER ORDERED that defendant’s motion to construe motion
under Rule 60(b) to be a motion under § 2255 (Docket 830) is granted. The
clerk is directed to open a new matter under § 2255 and forward the proper
draft § 2255 pleadings to Chantharath for completion.
Dated October 17, 2013.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
2
Case 4:10-cr-40004-KES Document 831 Filed 10/17/13 Page 2 of 2 PageID #: <pageID>