1 

NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

CAMDEN VICINAGE 

 

 : 

UNITED STATES OF AMERICA : 

 : Crim. Action No. 10-434(RMB) 

 : 

 v. : OPINION

 : 

FREDERICK SELLERS : 

 : 

BUMB, District Judge: 

 This matter is before the Court upon Defendant Frederick 

Sellers’s (“Sellers”)) Rule 60(b)(4), 60(b)(6) Motion Seeking 

Relief From a Final Judgment (“Rule 60(b) motion”, ECF No. 80) and 

the Government’s opposition to the motion (Mem. of Law of the 

United States in Opp. to Def’s Mot. Seeking Relief from Final 

Judgment Under Fed. Rule of Civ. P. 60(b) (“Gov’t Opp. Brief,” ECF 

No. 82.) For the reasons discussed below, the 60(b) motion is 

denied. 

I. PROCEDURAL HISTORY 

 A Complaint was issued against Sellers in the District of New 

Jersey on December 8, 2009, in Case No. 09-mj-1082-AMD, charging 

him with violating 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A), 

conspiracy to distribute and possession with intent to distribute 

more than five kilograms of cocaine in Camden County, New Jersey, 
2 

and an indictment was issued on June 30, 2010. U.S. v. Sellers, 

Crim. Action No. 10-434(RMB) (D.N.J.) (ECF Nos. 1, 21.) A 

jury found Sellers guilty on November 12, 2010. (Id., ECF No. 49.) 

Judgment was entered on April 6, 2011, and Sellers was sentenced 

to a term of imprisonment for 188 months, and a five-year term of 

supervised release. (Id., ECF No. 53.) Sellers appealed to the 

Third Circuit Court of Appeals. (Id., ECF No. 54.) 

Upon Sellers’s direct appeal, the Third Circuit Court of 

Appeals made the following findings: 

After being charged with drug-related 

offenses, Mario Estrada–Espinosa and Jose Luis 

Grimaldo–Valencia cooperated with the 

government by identifying Sellers as a drug 

trafficker who purchased large amounts of 

cocaine from them. Their cooperation resulted 

in Sellers's arrest. 

Shortly thereafter, Sellers participated in a 

proffer session with the government, agreeing 

in advance that “[t]he government [could] use 

[his] statements and any information provided 

by [him] to cross-examine [him] and to rebut 

any evidence or arguments offered on [his] 

behalf” in any subsequent trial. (Supp.App. at 

109.) During that meeting, the government and 

Sellers's counsel were aware that Espinosa had 

fled the country and would therefore be 

unavailable to testify at Sellers's trial. 

Sellers, however, claims to have been unaware 

of that fact. Indeed, although his lawyer had 

sent him a letter before the session informing 

him of Espinosa's unavailability, Sellers 

testified that he did not receive the letter 

until after the session had concluded. Sellers 

testified that he would not have participated 

in the proffer session had he received that 

letter in time, as knowing that Espinosa would 

be unavailable to testify against him would 
3 

have made him think that he could “buil[d] a 

defense.” (Joint App. at 94.) 

Even after learning that Espinosa had 

absconded, however, Sellers chose to meet with 

the government for a second time. At that 

meeting, the government indicated its intent 

to file a complaint requiring Sellers to 

forfeit a truck that he had used to commit the 

crime for which he was charged, leading 

Sellers's counsel to believe that the 

“forfeiture of the truck” was “one aspect in 

addition to other aspects that were being 

discussed in connection with [a] cooperating 

plea agreement.” (Id. at 30.) Subsequently, 

with the deadline to file the forfeiture 

complaint approaching, the government 

requested Sellers's assent to an extension of 

the time to file the complaint seeking that 

relief. Although Sellers's counsel 

communicated to Sellers that his refusal to 

consent to the extension could “be a deal 

breaker in light of other issues that were 

ongoing with cooperation” (id. at 37), Sellers 

ultimately rejected the government's request. 

The government then ceased plea negotiations 

and indicted Sellers. Sellers, in turn, filed 

a motion to dismiss the indictment for 

prosecutorial vindictiveness, asserting that 

his refusal to consent to the extension of 

time to file the forfeiture complaint was the 

sole reason the government decided to cease 

negotiations and indict him. Although he 

“concede[d] that there[ ] [was] no presumption 

of vindictiveness” under the facts of his 

case, he claimed “that the prosecutor's 

decision and the facts [of his case] 

support[ed] actual vindictiveness.” (Id. at 

117.) The District Court rejected that 

contention, concluding that “Sellers ... 

failed to provide [the] Court with evidence of 

actual vindictiveness on the part of the 

government.” (Id.) To the contrary, as the 

Court pointed out, Sellers's “failure ... to 

merely agree to extend the time to file a 

forfeiture complaint demonstrated [that he] 
4 

... was not willing to cooperate” with the 

government at all. (Id. at 118.) 

. . . 

Sellers's case went to trial, and the jury 

found him guilty on the sole count in the 

indictment. The District Court sentenced him 

to 188 months' imprisonment and 5 years' 

supervised release. 

U.S. v. Sellers, 501 F. Appx 194, 195-97 (3d Cir. 2012). 

 The Third Circuit affirmed this Court’s denial of Sellers’s 

motion to dismiss the indictment based on prosecutorial 

vindictiveness, stating: 

Due process is violated when one is punished 

vindictively for doing “what the law plainly 

allows” in “exercising a protected statutory 

or constitutional right.” United States v. 

Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 

L.Ed.2d 74 (1982). “The Supreme Court has 

determined that certain prosecutorial conduct 

raises a presumption of vindictiveness....” 

United States v. Spears, 159 F.3d 1081, 1086 

(7th Cir.1998). That presumption generally 

does not apply, however, to “pre-trial 

prosecutorial conduct.” Id.; see Goodwin, 457 

U.S. at 384, 102 S.Ct. 2485 (“The possibility 

that a prosecutor would respond to a 

defendant's pretrial demand for a jury trial 

by bringing charges not in the public interest 

that could be explained only as a penalty 

imposed on the defendant is so unlikely that 

a presumption of vindictiveness certainly is 

not warranted.”). Thus, for “a defendant to 

prove vindictiveness on the part of the 

government for its decision to seek an 

indictment, he must present objective evidence 

showing genuine prosecutorial 

vindictiveness,” Spears, 159 F.3d at 1086, 

that is, that the prosecutor was actually 

vindictive, United States v. Esposito, 968 
5 

F.2d 300, 305 (3d Cir.1992); see id. (“[W]here 

the government's conduct is attributable to 

legitimate reasons, we will not apply a 

presumption of vindictiveness (though [the] 

defendant may still show actual 

vindictiveness).”). 

Recognizing that, since he challenges the 

decision to indict, he cannot benefit from the 

presumption of vindictiveness in this case, 

Sellers argues that the District Court 

nevertheless should have dismissed the 

indictment because “[t]he facts [he] adduced 

... most certainly demonstrated ... actual 

vindictiveness.” (Appellant's Br. at 14.) As 

he sees it, his case would have ended in a 

non-trial disposition had he consented to the 

government's request for an extension of time 

to file a forfeiture complaint. The District 

Court found otherwise, explaining that the 

evidence instead showed that Sellers's refusal 

to consent to the extension of time to file a 

forfeiture complaint was the “last straw” 

(Joint App. at 119) among other actions that 

demonstrated to the government that Sellers 

“was not willing to cooperate,” as initially 

hoped (id. at 118). 

“Our review of the [D]istrict [C]ourt's 

factual finding [regarding] actual 

vindictiveness is for clear error....” Maddox 

v. Elzie, 238 F.3d 437, 446 (D.C.Cir.2001). 

Under that standard of review, we may not 

reverse the District Court “unless, on review 

of the entire evidence, we are left with the 

definite and firm conviction that a mistake 

has been committed.” United States v. Siddons, 

660 F.3d 699, 708 (3d Cir.2011) (citation and 

internal quotation marks omitted). 

We discern no error, let alone clear error, in 

the District Court's conclusion that Sellers 

failed to demonstrate actual vindictiveness. 

As the District Court appropriately 

characterized it, the evidence shows that the 

decision to indict Sellers stemmed from the 

government's perception that Sellers was 
6 

unwilling to cooperate. (See Joint App. at 30 

(Sellers's counsel recalling that “the 

forfeiture of the truck was one aspect in 

addition to other aspects that were being 

discussed in connection with the cooperating 

plea agreement”).) That Sellers was indicted 

when his lack of cooperation became apparent 

is not, as Sellers submits, evidence that his 

indictment must have been retaliatory. See 

United States v. Oliver, 787 F.2d 124, 125–26 

(3d Cir.1986) (holding there was no 

prosecutorial vindictiveness where the 

defendant “freely decided not to cooperate ... 

and, as a result, was later indicted”). We 

thus conclude that the District Court properly 

denied Sellers's motion to dismiss the 

indictment. 

 

Sellers, 501 F. Appx at 197-98 (3d Cir. 2012). 

 On January 21, 2014, Sellers filed a motion to vacate, set 

aside, or correct sentence under 28 U.S.C. § 2255, raising claims 

of ineffective assistance of counsel. Sellers v. United States, 

Civ. Action No. 14-388(RMB), (D.N.J.) (Pet., ECF No. 1; Am. Pet., 

ECF No. 15.) This Court denied the motion on January 31, 2017. 

(Opinion, ECF No. 23.) 

II. THE PARTIES’ ARGUMENTS 

 Sellers asserts one ground for relief under Federal Rule of 

Civil Procedure 60(b)(4) and (6): 

Defendant asserts that the District court 

abused it’s [sic] discretion by acting in a 

manner inconsistent [sic] with due process of 

law while continuously making inadvertant 

[sic] statements that concurred with the 

petitioner’s initial claim of vindictive 

prosecution. But ruling otherwise. The acts 

displayed by the courts [sic] coupled with the 
7 

overwhelming evidence should render the 

judgement [sic] void. 

(Rule 60(B) Mot., ECF No. 80 at 2.) 

 Sellers argued vindictive prosecution in a pre-trial hearing 

on November 1, 2010, based on an email his attorney Richard 

Sparraco sent to him. (Id.) The email “was by the direction of the 

U.S. Attorney,” who threatened Sellers with an indictment if he 

would not give the Government an extension to file a motion for 

forfeiture of his truck. (Id.) 

 Sellers contends that the trial court made statements at the 

pretrial hearing that supported his vindictive prosecution 

argument, and yet the ruling went against him. (Id. at 4.) He 

asserts that these are extraordinary and special circumstances 

justifying relief under Rule 60(b)(4). 

 In opposition to Sellers’s motion, the Government contends 

Sellers is attempting to relitigate an issue that was decided at 

trial and on direct appeal, and should be rejected for four 

reasons: (1) the motion is an impermissible use of Rule 60(b); (2) 

the motion is really a successive § 2255 motion that fails to meet 

the gatekeeping requirements of the Antiterrorism and Effective 

Death Penalty Act (“AEDPA”); (3) the motion is barred under the 

“re-litigation bar,” because Sellers raised the claim on direct 

appeal and lost; and (4) assuming jurisdiction under Rule 60(b)(6), 

the motion is time-barred. 
8 

 In support of the argument that the motion is an impermissible 

use of Rule 60(b), the Government notes that the only permissible 

use of a Rule 60(b) motion in a habeas case is to raise a defect 

in the § 2255 proceeding. (Gov’t Opp. Brief, ECF No. 82 at 5, 

citing Gonzalez v. Crosby, 125 S.Ct. 2641 (2005)). Even if the 

court were to re-characterize the 60(b) motion as a § 2255 motion 

attacking the criminal judgment, the Government asserts the motion 

is barred as a second or subsequent motion under § 2255. 

 If this Court reclassified the motion as a § 2255 motion, the 

Government argues that the Court lacks jurisdiction because 

Sellers did not meet AEDPA’s gatekeeping requirements of obtaining 

permission from the Circuit Court of Appeals to file a successive 

§ 2255 motion. (Id. at 7, citing 28 U.S.C. § 2255(h)). Sellers 

filed an amended § 2255 motion on August 10, 2015, and he filed 

the present motion on September 7, 2017, making it a successive 

petition. (Id.) 

 Next, the Government contends the motion must be dismissed 

under the “re-litigation bar.” (Id. at 8.) Sellers raised a claim 

of prosecutorial vindictiveness at the trial level and on appeal, 

and his claim was rejected at both levels. (Id.) Therefore, the 

Government asserts, Sellers cannot re-litigate his claim that was 

decided on direct review.1 (Id., citing United States v. DeRewal, 

 

1 The cases cited by the Government held that a motion under 28 

U.S.C. § 2255 cannot be used to relitigate matters decided 
9 

10 F.3d 100, 105 n.4 (3d Cir. 1993); United States v. Pelullo, 305 

F. App’x 823, 827 (3d Cir. 2008); United States v. Orejuela, 639 

F.3d 1055, 1057 (3d Cir. 1981). 

 Finally, the Government asserts that if this Court treats the 

present motion as one under Rule 60(b), it is time-barred. (Id. at 

10.) A Rule 60(b)(6) motion must be filed “within a reasonable 

time.” Fed. R. Civ. P. 60(c)(1). (Id.) Sellers’s judgment of 

conviction was entered more than six years ago. (Id.) 

III. ANALYSIS 

 Federal Rule of Civil Procedure 60(b) provides, in 

pertinent part: 

(b) Grounds for Relief from a Final Judgment, 

Order, or Proceeding. On motion and just 

terms, the court may relieve a party or its 

legal representative from a final judgment, 

order, or proceeding for the following 

reasons: 

 . . . 

(4) the judgment is void; 

. . . 

(6) any other reason that justifies 

relief. 

A void judgment under Rule 60(b)(4), “is one so affected by a 

fundamental infirmity that the infirmity may be raised even after 

 

adversely on direct appeal. The Government has not cited a case, 

nor has this Court found a case that holds a Rule 60(b) motion 

cannot be used to relitigate matters decided adversely on direct 

appeal. 
10 

the judgment becomes final.” United Student Aid Funds, Inc. v. 

Espinosa, 559 U.S. 260, 270 (2010) (citations omitted). The list 

of infirmities that qualify as fundamental is “exceedingly short.” 

Id. It “applies only in the rare instance where a judgment is 

premised either on a certain type of jurisdictional error or on a 

violation of due process that deprives a party of notice or the 

opportunity to be heard.” Id. (citations omitted). “‘A judgment is 

not void,’ for example, ‘simply because it is or may have been 

erroneous.’” Id. (quoting Hoult v. Hoult, 57 F.3d 1, 6 (1st Cir. 

1995)). 

 Here, Sellers’s due process claim is that this Court made 

comments that supported his vindictive prosecution claim at a 

pretrial hearing but the Court ruled against him. Sellers raised 

his vindictive prosecution claim on direct appeal and it was 

denied. Sellers was not deprived of the opportunity to be heard on 

this claim. Furthermore, even erroneous rulings are not void under 

Rule 60(b)(4). Therefore, if the motion was timely, Sellers is not 

entitled to relief under Rule 60(b)(4). 

Rule 60(b)(6) relief is appropriate “only in extraordinary 

circumstances where, without such relief, an extreme and 

unexpected hardship would occur.” Cox v. Horn, 757 F.3d 113, 120 

(3d Cir. 2014) (quoting Sawka v. Healtheast, Inc., 989 F.2d 138, 

140. (3d Cir. 1993). A claim under Rule 60(b)(6) must be brought 

within a reasonable time. Sellers’s judgment of conviction was 
11 

entered on April 6, 2011. Six years is not a reasonable time in 

which to bring a claim challenging a conviction on the basis of 

vindictive prosecution where all of the facts supporting the claim 

were known at that time. See Walsh v. United States, 639 F. App’x 

108, 111 (3d Cir. 2016) (finding more than six years was not a 

reasonable time in which to bring Rule 60(b)(6) motion); Moolenaar 

v. Government of Virgin Islands, 822 F.3d 1342, 1348 (3d Cir. 1987) 

(finding almost two years was not a reasonable time in which to 

bring a Rule 60(b)(6) motion)). Moreover, Sellers’s claim that his 

due process rights were violated by denial of his prosecutorial 

vindictiveness claim, where his vindictive prosecution claim has 

already been considered and rejected in a pretrial motion and on 

appeal, does not create an extreme and unexpected hardship for 

Sellers. 

IV. CONCLUSION 

 For the reasons discussed above, the Court denies Sellers’s 

Rule 60(b) motion. 

 

Dated: January 23, 2017 

 s/Renée Marie Bumb 

RENÉE MARIE BUMB 

 United States District Judge