Bailey v. FCI Berlin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Michael David Bailey
v. 	Case No. 20-cv-540-JL
Warden, FCI Berlin
Report and Recommendation
Michael David Bailey, who is incarcerated at the Federal
Correctional Institution, Berlin, New Hampshire (“FCI Berlin”),
sought a writ of habeas corpus pursuant to 28 U.S.C. § 2241,
challenging his sentence imposed in the District of Montana as
an armed career criminal. 	The warden moved to dismiss on the
ground that this court lacked subject matter jurisdiction
because Bailey’s claim was cognizable under 28 U.S.C. § 2255,
which provided an adequate an effective remedy. 	The motion to
dismiss was granted; judgment was entered; and Bailey did not
appeal.
Bailey now moves, pursuant to Federal Rule of Civil
Procedure 60(b)(1), to vacate judgment because, he contends, he
made mistakes in his objection to the motion to dismiss. 	The
warden objects to Bailey’s motion on grounds that it is untimely
and that Bailey cannot use Rule 60 as a substitute for an
appeal.
Discussion
Rule 60(b)(1) provides that the court may relieve a party
from a final judgment because of “mistake, inadvertence,
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surprise, or excusable neglect.” 	To support a motion under Rule
60(b), the moving party must show that the motion is timely,
that there are exceptional circumstances that support the
motion, that he can maintain a meritorious claim if judgment is
vacated, and that vacating judgment will not prejudice the
opposing party. 	Skrabec v. Town of North Attleboro, 878 F.3d 5,
9 (1st Cir. 2017). 	A motion for relief under Rule 60(b)(1) must
be filed no later than a year after the entry of judgment. 	Fed.
R. Civ. P. 60(c)(1).
Judgment was entered on October 5, 2020. 	Bailey filed the
motion for relief under Rule 60(b)(1) on October 28, 2021, more
than a year later. 	Therefore, the motion is not timely.
As the warden acknowledges, the court may review a motion
under a different section of Rule 60(b) in appropriate cases.
Fisher v. Kadant, Inc., 589 F.3d 505, 513 (1st Cir. 2009). 	Rule
60(b)(6) does not have the one-year deadline and provides that
judgment may be vacated for “any other reason that justifies
relief.” 	Nevertheless, Rule 60(b)(6) requires a showing of
extraordinary circumstances based on a reason not covered by
other parts of the rule. 	Doucette v. Aroostook Cnty. Jail, 2022
U.S. Dist. LEXIS 60144, at *3 (D. Me. Mar. 31, 2022).
Bailey argues that since judgment was entered he has
learned that Ninth Circuit precedent should have governed his
petition because he was sentenced in the District of Montana and
that a case from the District of Oregon supports his claim. 	He
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cites Hahn v. Moseley, 931 F.3d 295, 301 (4th Cir. 2019), to
show that in determining whether the savings clause under §
2255(e) would allow a § 2241 petition to proceed, the procedural
law of the circuit where the petition was filed applies but the
substantive claim raised in the petition is governed by the law
of the circuit where the petitioner was convicted. 	He contends
that under Ninth Circuit precedent, his § 2241 petition should
not have been dismissed.
Whether or not the rule applied by the Fourth Circuit in
Hahn should be followed in this case, it would not change the
outcome. 	Here, the court followed First Circuit precedent on
the issue of the procedure for applying the savings clause in §
2255(e), which does not allow § 2241 petitions to proceed
because a petition under § 2255 is barred by the statute of
limitations. 	The court then considered the Ninth Circuit
precedent cited by Bailey on the issue of actual innocence and
concluded that the holdings in those cases did not support
Bailey’s claim of actual innocence to qualify for the § 2255(e)
savings clause.
Bailey did not move for reconsideration of that decision or
appeal. 	The warden is correct that a motion under Rule 60(b) is
not an appropriate substitute for an appeal. 	Cotto v. United
States, 993 F.2d 274, 278 (1st Cir. 1993).
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Therefore, Bailey has not shown extraordinary circumstances
that would support his motion to vacate the judgment under Rule
60(b)(6).
Conclusion
For the foregoing reasons, the district court should deny
Bailey’s motion to vacate judgment under Rule 60(b) (doc. no.
14).
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. 	See Sch. Union No. 37 v. United Natl Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). 	Any issues not preserved by
such objection(s) are precluded on appeal. 	See id. 	Failure to
file any objections within the specified time waives the right
to appeal the district court's order. 	See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 19, 2022
cc: 	Michael David Bailey, pro se
Seth R. Aframe, AUSA
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