Rule 59 and Rule 60: Post-Judgment Proceedings
When a section 2255 movant is unsuccessful at the district court level, he or she has several post-judgment options available. The traditional option is the appeal, which is discussed here. In some instances, however, it may make sense to seek reconsideration pursuant to Federal Rule of Civil Procedure 59 or 60. Both of these Rules are available to the section 2255 litigant. See Rule 12 of the Rules Governing Section 2255 Proceedings; United States v. Clark, 984 F.2d 31, 34 (2d Cir. 1993)(Rule 59 applies in section 2255 proceedings); Gonzalez v. Crosby, 545 U.S. 524, 534 (2005)("Rule 60(b) has an unquestionably valid role to play in habeas cases.").
Rule 59(e): Motion to Alter or Amend a Judgment
Rule 59(e) authorizes a motion to alter or amend a judgment. A Rule 59(e) motion must be filed no later than 28 days after the entry of the judgment. This is a strict time limit, and the court has no authority to grant more time. See Fed. R. Civ. 6(b); United States v. Fiorelli, 337 F.3d 282 (3d Cir. 2003). A timely Rule 59(e) motion tolls the time to appeal the district court's judgment on the section 2255 motion. See Fed. R. App. 4(a)(4)(A). The 60-day time to appeal will not run again until the Rule 59(e) motion is disposed of. Note this important point: if the Rule 59(e) motion is not timely (meaning, not filed within 28 days of the entry of the judgment), then the time to appeal is not tolled.
Rule 59(e): Example Grounds for Relief
A motion for reconsideration under Rule 59(e) can be filed for almost any reason. As the court said in Fiorelli, supra at 338, Rule 59(e) is a "device to relitigate the original issue decided by the district court, and used to allege error." The following are a few grounds for relief that may be brought under Rule 59(e):
- Errors of law or fact in the court's decision. See McDowell v. Calderon, 197 F.3d 1253, 1255 n. 1 (9th Cir. 1999)( banc)(Rule 59(e) is available to "correct manifest errors of law or fact upon which the judgment is based.").
- Errors of procedure or evidence. See Browder v. Director, 434 U.S. 257, 266 (1978)(erroneous denial of hearing is a proper claim brought under Rule 59(e)).
- Clerical mistakes. See Fed. R. Civ. P. 60(a); Advisory Committee Note to Fed. R. Civ. P. 60 (any Rule 60 ground for relief may also be brought under Rule 59(e)).
- Mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, any factor rendering the judgment void, and any other reason that justifies relief. See Fed. R. Civ. P. 60(b); Advisory Committee Note to Fed. R. Civ. P. 60 (any Rule 60 ground for relief may also be brought under Rule 59(e)).
- Any reason for which a rehearing has been granted in a suit in equity in federal court. See Fed. R. Civ. P. 59(a)(l)(B).
Rule 60: Motion for Relief from a Judgment
Rule 60 permits a motion for relief from a judgment to be filed after the 28 day timeframe for filing a Rule 59(e) motion has run. Specifically, an unsuccessful section 2255 movant may, within one year, file a Rule 60(b) motion for relief from judgment on the grounds of (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that, through the exercise of reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59; or (3) fraud, misrepresentation or misconduct by the opposing party. See Fed. R. Civ. P. 60(b)(1)-(3), (c)(1). Rule 60 also permits the unsuccessful section 2255 movant to, within a "reasonable time," file a 60(b) motion for relief from judgment on the grounds that (4) the judgment is void; (5) the judgment has been satisfied, is based on an earlier judgment that has been vacated, or applying the judgment prospectively would not be equitable; or (6) any other reason that justifies relief. See Fed. R. Civ. P. 60(b)(4)-(6), (c)(1).
If a Rule 60(b) motion is filed within 28 days of entry of the judgment, the time to appeal will be tolled. Rule 60, however, is often used long after entry of judgment. As such, in most cases a Rule 60(b) motion will not toll the 60 day time to appeal.
When Possible Use a Rule 59(e) Motion Instead of a Rule 60 Motion
For an unsuccessful section 2255 movant who is considering a post-judgment motion in lieu of an appeal, Rule 59(e) is almost always the way to go. There are two significant reasons why this is so. First, while decisions on both Rule 59 and 60 motions are appealable, appellate review of a Rule 60 motion is limited to review of the denial of the Rule 60 motion only. Conversely, when an appellate court reviews the denial of a Rule 59(e) motion, it will review the underlying judgment (the denial of the section 2255 motion) as well. Browder v. Director, 434 U.S. at 263 n. 7.
The second and far more compelling reason to use Rule 59(e) when possible is to avoid the AEDPA restrictions on second or successive 2255 motions. In Gonzalez v. Crosby, 545 U.S. at 532, the Supreme Court said that if a Rule 60 motion ''attacks . . . the substance of the federal court's resolution of the [section 2255] claim on the merits," it should be treated as a second or successive section 2255 motion. A Rule 60 motion won't always be recharacterized as a second or successive section 2255 motion, such as when the Rule 60 motion "attacks, not the substance of the federal court's resolution of a [section 2255] claim on the merits, but some defect in the integrity of the federal habeas proceedings," Id., but the danger of recharacterization is enough to counsel using Rule 59 if possible.
Experienced Rule 59 and 60 Attorneys
When the district court denies a section 2255 motion, all is not lost. An appeal is still possible, as are post-judgment motions under Rule 60 and 59. The best course of action is difficult to discern, and if you or a loved one find yourself in this situation, it may be time to hire an experienced habeas corpus attorney. At the Law Offices of Brandon Sample, we help federal prisoners use section 2255 to get the relief they deserve. Our experienced litigators know when to file a Rule 59 or 60 motion, and when to appeal. Contact us now for a consultation.
Rule 59 and Rule 60: Post-Judgment Proceedings FAQs
Q: What is Rule 59?
A: Rule 59 of the Rules of Civil Procedure authorizes a section 2255 movant to ask the court to alter or amend a judgment. Rule 59(e). When a district court enters judgment denying the section 2255 movant relief, the federal prisoner may, no later than 28 days after the judgment, move the district court to alter or amend the judgment under Rule 59(e).
Q: On what grounds can I file a Rule 59(e) motion?
A: Rule 59(e) is a "device used to relitigate the original issue decided on the merits by the district court, and to allege error." United States v. Fiorelli, 337 F.3d 282, 338 (3d Cir. 2003). As such, Rule 59(e) can be used to pursue post-judgment relief on almost any grounds.
Q: If I file a Rule 59(e) motion, do I still have to file my appeal within 60 days of the judgment?
A: When the 59(e) motion is timely (filed within 28 days of the judgment), it will toll the time for filing an appeal. This means that the time to file an appeal will not begin to run until after the motion is disposed of.
Q: What is Rule 60?
A: Rule 60 of the Rules of Civil Procedure authorizes a section 2255 movant to ask the court for relief from a judgment. Rule 60 differs from Rule 59 in that Rule 60 may be used after the 28 day timeframe for filing a Rule 59(e) motion has run.
Q: On what grounds can I file a Rule 60 motion?
A: Rule 60 allows a movant to make the following claims within one year of the judgment: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59; or (3) fraud, misrepresentation or misconduct by the government. Rule 60 allows for a movant to make the following claims within a "reasonable time:" (4) the judgment is void; (5) the judgment has been satisfied, is based on an earlier judgment that has been vacated, or applying the judgment prospectively would not be equitable; or (6) any other reason that justifies relief.
Q: Does a Rule 60 motion toll the time for my appeal?
A: A Rule 60 motion will only toll the 60 day timeframe to appeal when it is filed within 28 days of the entry of judgment.
Q: I don't know whether to file a Rule 59(e) or Rule 60 motion. What should I do?
A: Contact us. There are significant differences between these two motions, and filing the wrong one at the wrong time can have serious consequences. By the time a Rule 60 or 59(e) motion is on the table, you are already behind the ball. Our experienced habeas corpus attorneys can help you navigate the post-judgment minefield.