UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA )

)

v. ) No. 1:09-cr-30-02-GZS

)

ELAINE BROWN )

 

GOVERNEMNT’S OBJECTION TO DEFENDANT’S MOTION FOR RELIEF

FROM A JUDGMENT OR ORDER, Docket # 285

The defendant has filed a Motion for Relief from Judgment or Order, pursuant to Federal 

Rule of Civil Procedure 60(b)(2) and (6), asking the Court “to review her sentence.” Motion p. 7. 

For the reasons set forth below, the Court lacks jurisdiction to entertain the Motion and therefore 

it must be denied.

The history of the defendant’s case is as follows:

On July 9, 2009 the defendant was convicted by a jury of Counts 1, 2, 4, 6, 8, and 11.

On July 15, 2009 the defendant filed a Motion for New Trial and Ancillary Relief.

On September 24, 2009 this Court denied the Motion for New Trial and Ancillary Relief.

On October 2, 2009 Judgment was entered and the defendant was sentenced to 420 months.

On October 8, 2009 the defendant filed a Notice of Appeal.

On January 20, 2012 the Court of Appeals affirmed the defendant’s conviction.

On February 13, 2012 the Court of Appeals issued the Mandate in the defendant’s appeal.

On January 14, 2013 the defendant filed a petition, under 28 U.S.C. §2255, to vacate sentence.

On May 17, 2013 a Recommended Decision was issued recommending the 2255 Petition be 

dismissed with prejudice and that a certificate of appealability should not issue.

On June 7, 2013 an Order was entered approving the Report and Recommendation of May 17, 

2013.

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On June 7, 2013 Judgment was issued in accordance with the Report and Recommendation of 

May 17, 2013.

On April 14, 2014 the defendant filed a 2255 Petition with the Court of Appeals.

On April 23, 2014 the Court of Appeals issued Judgment denying Mrs. Brown’s Motion for 

Leave to file a second or successive 28 U.S.C. 2255 Petition.

On November 3, 2014, in this Court, the defendant filed the instant “Motion for Relief 

from a Judgment or Order” relying upon Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”).

In Munoz v. United States, 331 F.3d 151, 152-53 (1st Cir. 2003) the Court of Appeals 

held that a motion made under Rule 60(b) should be treated as a second, or successive habeas

petition if, but only if, the factual predicate in support of the motion constitutes a direct challenge 

to the constitutionality of the underlying conviction. Id. (citing Rodwell v. Pope, 324 F.3d 66, 67 

(1st Cir. 2003)). But, if the factual predicate attacks only the manner in which the earlier habeas 

judgment has been procured then the motion may be adjudicated under Rule 60(b). Here, the 

defendant is not attacking the manner in which her prior habeas judgment was procured and 

therefore Rule 60(b) is not the appropriate vehicle through which to seek a sentence reduction. 

Consequently, unless her Motion can be treated as a second or subsequent habeas petition, which 

it cannot be, it must be denied.

As noted above, Mrs. Brown has previously prosecuted a habeas petition, which this 

Court denied and upon which judgment was entered May 17, 2013. She then, on April 14, 2014, 

filed a 2255 petition with the Court of Appeals, which, on April 23, 2014, denied her motion to 

file a second or successive 2255 petition. A second or subsequent petition may only be brought 

if certified by a panel of the Court of Appeals. 28 U.S.C. § 2255(h). Since Mrs. Brown has not 

sought, let alone received, the required authorization from the Court of Appeals, this Court lacks 

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jurisdiction over her Rule 60(b) Motion and must therefore dismiss it.

Numerous Courts have recognized that Rule 60(b) is not, except in limited circumstances,

an appropriate vehicle to set aside a conviction or to reduce a sentence. See e.g. United States v. 

Wallace, 82 Fed.Appx. 701, 2003 WL 22927345 (C.A.1 (R.I.)). (“Neither the district court nor 

the government remarked on the obvious proposition that Rule 60(b) of the Federal Rules of 

Civil Procedure is an inappropriate procedural vehicle to vacate a criminal conviction.”); United 

States v. Mortimer, 256 Fed. Appx. 468 (3d Cir.2007) (“The District Court did not err in denying 

Mortimer's Rule 60(b) motion. As the court explained, Rule 60(b) of the Federal Rules of Civil 

Procedure is not the proper vehicle for Mortimer to challenge his sentence, as that rule applies to 

civil, not criminal, cases. See Fed.R.Civ.P. 60(b). Moreover, we see no error in the court 

declining to construe Mortimer's motion as a motion to correct his sentence pursuant to 28 

U.S.C. § 2255.”); United States v. Pope, 124 Fed. Appx. 680, 682 (2d Cir.2005) (“This motion is 

not an appropriate vehicle for defendant's attempt to vacate his criminal conviction because the 

Federal Rules of Civil Procedure govern “suits of a civil nature.” Fed.R.Civ.P. 1. While a Rule 

60(b) motion may be used “to set aside a habeas denial” in limited circumstances, it “does not 

itself seek habeas relief.” Harris v. United States, 367 F.3d 74, 80 (2d Cir.2004). Here, 

defendant was not seeking to set aside a denial of habeas relief, since he never sought such relief 

in the form of a motion under 28 U.S.C. § 2255.”); United States v. Platts 2014 WL 4450077 

(W.D. Pa.).

Although a Rule 60(b) Motion may be used to attack the manner in which an earlier 2255 

Judgment was procured, but not the underlying sentence or conviction, that is not the case here. 

A previous 2255 Petition has been denied in this Court, and the Court of Appeals thereafter

denied the defendant’s request to file a second or subsequent Petition. Mrs. Brown has not 

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sought further relief in the Court of Appeals. Because the defendant is not seeking to challenge 

the adjudication of any pending civil matter, this Court is without jurisdiction and the Motion 

must be denied. 

December 5, 2014 Respectfully submitted,

JOHN P. KACAVAS

United States Attorney

/s/ Arnold H. Huftalen

Arnold H. Huftalen

Assistant U.S. Attorney

NH Bar Association # 1215

53 Pleasant Street, 4th Floor

Concord, New Hampshire 03301

(603) 225-1552

arnold.huftalen@usdoj.gov

CERTIFICATION OF SERVICE

I certify that a copy of this Objection has been served upon the defendant via U.S. Mail 

and upon prior counsel for defendant Elaine Brown, Bjorn Lange, Esq., via ECF filing notice, 

this date, December 5, 2014.

/s/ Arnold H. Huftalen

Arnold H. Huftalen

Assistant U.S. Attorney

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