IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

UNITED STATES OF AMERICA )

 )

v. ) CRIMINAL NO. 08-0053-WS-M 

 ) 

JOSHUA UZIEL HUNTER, ) CIVIL NO. 09-0692-WS 

 ) 

Petitioner. )

ORDER

 This closed § 2255 proceeding comes before the Court on petitioner’s Motion for Relief 

from Judgment Pursuant to Fed.R.Civ.P. 60(b) (doc. 79). 

 In October 2008, petitioner, Joshua Uziel Hunter, was sentenced by this Court to a term 

of 161 months’ imprisonment on carjacking and firearms charges following a guilty plea. 

Hunter did not file a direct appeal; however, in October 2009, he filed a motion to vacate, set 

aside or correct his sentence pursuant to 28 U.S.C. § 2255. Hunter’s threadbare motion stated, 

without explanation or elaboration, that the grounds he wished to pursue in his collateral attack 

were “Ineffective assistance of counsel,” “Possession of a firearm,” and “Carjacking.” When 

Hunter failed to supplement or amend his § 2255 motion, the Magistrate Judge entered a Report 

and Recommendation (doc. 74) on April 13, 2010, recommending dismissal of Hunter’s petition 

for failure to provide factual allegations to support his assertions and failure to prosecute. Hunter 

responded to the Report and Recommendation on April 30, 2010, by filing a new § 2255 motion 

and identifying four grounds for relief that he had not previously asserted. On May 17, 2010, the 

undersigned entered an Order (doc. 77) adopting the Report and Recommendation and rejecting 

Hunter’s amended § 2255 motion as untimely pursuant to 28 U.S.C. § 2255(f). 

 Nearly two months after the dismissal of his § 2255 motion, Hunter filed a motion for 

relief from judgment pursuant to Rule 60(b), Fed.R.Civ.P. As grounds for this request, Hunter 

contends that this Court failed to review and consider Hunter’s “Letter Motion Filed On January 

28, 2010.” (Doc. 79, at 1.) According to Hunter, Rule 60(b) relief is necessary to remedy “a 

‘judicial travesty’ caused by this Court’s failure to simply read and address petitioner’s one and 

only § 2255 petition.” (Id. at 4.) Attached to Hunter’s Rule 60(b) Motion is an exhibit that 

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purports to be a “Letter Motion” dated January 28, 2010 wherein Hunter identifies his sole 

ground for § 2255 relief as being a claim of ineffective assistance of counsel predicated on his 

lawyer’s alleged failure to file an appeal after being requested to do so. The Letter Motion is 

accompanied by Hunter’s declaration under 28 U.S.C. § 1746 that he deposited said motion, 

properly addressed and with first-class postage affixed, in the prison legal mailbox on January 

28, 2010. 

 Hunter’s attempt to parlay the January 28 Letter Motion into Rule 60(b) relief from the 

Order and Judgment dismissing his § 2255 motion is unavailing for at least three reasons. First, 

Hunter’s suggestion that he is a victim of a “judicial travesty” because this Court never 

addressed his Letter Motion is misguided. The undersigned never reviewed or considered the 

Letter Motion because, for whatever reason, it was never received by the Clerk of Court for 

docketing, and therefore was not available in the court file as of May 17, 2010, when Hunter’s 

§ 2255 motion was denied.1

 Second, Hunter could have brought the Letter Motion to this 

Court’s attention in objections to the Report and Recommendation (which was predicated, in 

part, on the Magistrate Judge’s observation that Hunter had not amended or supplemented his 

barebones petition) prior to the dismissal of his § 2255 motion; however, for whatever reason, he 

elected not to do so. It was obvious from the Report and Recommendation that the Magistrate 

Judge was unaware of the Letter Motion, yet Hunter chose to remain silent by not bringing the 

existence of that filing to this Court’s attention via timely objections. Rule 60(b) relief is not 

appropriate to remedy a movant’s own failure to notify the court of relevant information and 

objections at an earlier time. See generally Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 

2010) (“A motion for reconsideration cannot be used to relitigate old matters, raise argument or 

present evidence that could have been raised prior to the entry of judgment.”); Seven Elves, Inc. 

v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981) (when deciding Rule 60(b) motion, district court 

 1

 It is true that under the prison mailbox rule, Hunter’s Letter Motion was deemed 

filed as of January 28, 2010, irrespective of whether it was ever received or filed by the Clerk’s 

Office. See generally Allen v. Culliver, 471 F.3d 1196, 1198-99 (11th Cir. 2006). The point is 

not that the Letter Motion was never filed for Houston v. Lack purposes, but that Hunter’s 

insinuation that judicial officers callously ignored his Letter Motion is simply counterfactual. 

Judges cannot read materials that have never been received for filing. 

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should consider factors “[t]hat final judgments should not lightly be disturbed” and whether “the 

movant had a fair opportunity to present his claim or defense” previously). 

 Third, and more fundamentally, Hunter’s Rule 60(b) motion fails because the Letter 

Motion would not have made any meaningful difference in this Court’s analysis and 

determination that denial of his § 2255 motion was warranted. Recall that the May 17 Order 

examined in detail the timeliness of Hunter’s amended § 2255 motion filed in April 2010, and 

that the May 17 Order found that “there is simply no record basis for concluding that the claims 

presented in his April 30 filing are tied to a common core of operative facts with those asserted 

in his October 2009 petition. Accordingly, the April 30 petition does not relate back to its 

predecessor, and is time-barred.” (Doc. 77, at 7.) The Letter Motion of January 28, 2010 is 

untimely for exactly the same reasons as Hunter’s amended § 2255 motion filed on April 30, 

2010. Like the amended habeas petition, Hunter’s Letter Motion was filed well after the oneyear AEDPA period had expired. Like the amended habeas petition, the Letter Motion was not 

rescued from noncompliance with the AEDPA deadline by principles of equitable tolling 

because Hunter has shown neither extraordinary circumstances nor diligence in not filing a 

complete § 2255 motion prior to that deadline. And like the amended habeas petition, the Letter 

Motion does not relate back under Rule 15(c) for the reasons set forth on pages 5 through 7 of 

the May 17 Order. 

 For all of the foregoing reasons, Hunter’s Motion for Relief from Judgment Pursuant to 

Rule 60(b) (doc. 79) is denied. 

DONE and ORDERED this 21st day of July, 2010. 

 s/ WILLIAM H. STEELE 

 CHIEF UNITED STATES DISTRICT JUDGE 

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