PORTER v. U.S

WILLIAM WILSON JR., District Judge

Pending is Petitioner's Motion for Relief from Judgment Pursuant to Federal Rule of Criminal Procedure 57(b) and Federal Rule of Civil Procedure 60 (Doc. No. 44).

Petitioner's motion critiques the manor in which the Court calculated his criminal history score and asserts claims for ineffective assistance of counsel.

To the extent that Petitioner is arguing that the criminal history was incorrectly calculated, the motion is without merit. Additionally, this issue is appropriately addressed in a direct appeal — which Petitioner never filed — not a collateral attack. Finally, Rule 60 motions must be filed "within a reasonable time." This motion was filed 1.5 years after the judgment became final, which, in this case, was not within a reasonable time.

As to Petitioner's ineffective assistance of counsel claim, the issue should be brought under 28 U.S.C. § 2255. Since Petitioner never filed a § 2255 motion, I will not reclassify the motion at this time. If Petitioner wishes to pursue a § 2255 motion, he should bring all of his collateral claims in that motion, because, generally, successive § 2255 habeas petitions are not permitted. Petitioner should also be aware that there is a one year statute of limitations for filing a § 2255 motions, which commences from the date the judgment becomes final — July 27, 2007, in this case.

Based on the findings of fact and conclusions of law above, Petitioner's Motion for Relief from Judgment Pursuant to Federal Rule of Criminal Procedure 57(b) and Federal Rule of Civil Procedure 60 (Doc. No. 44) is DENIED. If Petitioner decides to refile his ineffective assistance claims (and any other collateral claims) in a proper § 2255 motion, he should also include an explanation as to why the claims are not barred by the statute of limitations.

IT IS SO ORDERED.