government brief hyatt.pdf

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAVID L. HYATT, ) Case No. 5:93 CR 0237 )

Petitioner, ) ) Judge David D. Dowd, Jr.

vs. ) )

UNITED STATES OF AMERICA, ) ) Respondent. )

GOVERNMENT'S RESPONSE TO PETITIONER'S MOTION FOR RELIEFUNDER RULE 60(b), FEDERAL RULES OF CIVIL PROCEDURE

The United States of America, by and through counsel,

submits that David L. Hyatt's motion for relief from judgment

under Rule 60(b) of the Federal Rules of Civil Procedure is

without merit; and it is properly denied without hearing.

The government’s position is more fully set out in the

following memorandum.

DISCUSSION

A. Preliminary Statement.

The clear thrust of Hyatt’s Civil Rule 60(b) motion is that

the indictment (and superseding indictment) giving rise to his

conviction and life sentence was defective. Specifically, Hyatt

Case: 5:93-cr-00237-DDD Doc #: 384 Filed: 08/14/13 1 of 14. PageID #: 368

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alleges the government and the Court proceeded against him on an

indictment that failed to charge an offense; thereby “stripping

the Court of subject-matter jurisdiction” and voiding the

judgement. (See generally R. 380: 60(b) Motion, PageID #325-26).

Although he claims to the contrary, Hyatt is unquestionably

challenging the underlying conviction/sentence, and is not

asserting a defect in § 2255 (habeas) proceedings. Consequently,

Hyatt’s motion constitutes a second and successive § 2255

petition which must first be submitted to the Sixth Circuit Court

of Appeals.

B. Procedural History of Case.

Hyatt was tried and convicted by jury (November 19, 1993) on

a superseding indictment which charged him and others with

conspiracy to distribute and to possess with the intent to

distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1)

and 841(b)(1)(A).1

1 Hyatt was arrested on July 13, 1993, in New York City. Heand five co-defendants were originally indicted on August 3,1993. A superseding indictment was returned on September 29,1993, which added additional co-defendants. The supersedingindictment alleged a conspiracy, “Beginning approximately in thefall of 1990 and continuing to at least on or about April 10,1992.” The superseding indictment set out overt acts whichgenerally described the conspiracy headed by Hyatt, and outlineda pattern of multi-kilogram transactions and events, including aseizure of 20 kilograms of cocaine from three co-conspirators(couriers) on April 10, 1992, which were introduced at trial assubstantive evidence against Hyatt. Trial testimony furtherlinked Hyatt to multiple tractor-trailer shipments of hundreds ofkilograms (minimally) of cocaine. The indictment and supersedingindictment are attached hereto as Exhibits A & B.


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Hyatt’s conviction and life sentence were affirmed by the

Sixth Circuit Court of Appeals (C.A. No. 94-3133) on or about

September 9, 1995.2

On May 4, 1998, Hyatt filed a motion pursuant to 28 U.S.C.

§ 2255 to vacate his conviction and sentence. The district court

dismissed the motion as time-barred under The Anti-Terrorism and

Effective Death Penalty Act of 1996 (AEDPA). Hyatt appealed the

district court’s ruling (C.A. No. 98-4229). On March 27, 2000,

the Sixth Circuit Court of Appeals affirmed the district court in

all respects. See United States v. Hyatt, 207 F.3d 831 (6th Cir.

2000).

On or about February 2, 2001, Hyatt filed a motion with the

Sixth Circuit under 28 U.S.C. § 2255, docketed as C.A. No. 01-

3011, seeking authority to assert various claims based on

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). On

October 30, 2001, the Circuit Court denied Hyatt’s motion.

On June 23, 2003, Hyatt filed another motion with the Sixth

Circuit (C.A. No. 03-3680), again requesting authorization to

assert his Apprendi claims in the district court pursuant to 28

U.S.C. § 2255 ¶6(3), or in the alternative, in a second and

2 Hyatt’s life sentence was not the result of a statutorilyrequired penalty; rather, it was based upon a U.S.S.G.computation which resulted in the maximum Total Offense Level of43 (actually the offense level was initially computed as a Level46).


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successive motion under 28 U.S.C. § 2255 ¶8(2). The Sixth

Circuit denied Hyatt’s request on or about October 23, 2003.

Thereafter, Hyatt unsuccessfully filed various claims for

relief with the district court, including an August 30, 2004,

motion to recall, void, and/or modify the Judgment (R. 315:

Motion), a December 9, 2005, motion to preserve a § 2255 petition

(R.326: Motion), and a second motion for sentence reduction under

18 U.S.C. §3582 based upon U.S. Guidelines Amendments 505 and

536. (R. 337: Motion).3 After the district court denied Hyatt’s

last motion, he appealed (C.A. 08-4521 and 08-4597). On

November 5, 2009, the Court of Appeals affirmed the district

court’s ruling. (R. 367/369: Order/Mandate).

On or about May 10, 2012, Hyatt filed a motion “For

Reconsideration” under Rule 60(d), Federal Rules of Civil

Procedure. Additionally, on or about June 6, 2012, Hyatt filed

with the Sixth Circuit Court of Appeals a motion for leave to

3 In November 1996, Hyatt filed a motion pursuant to 18U.S.C. § 3582(c)(2) to modify his sentence based upon asubsequently amended guideline provision which lowered hisapplicable base offense level. The Court agreed that Hyatt’sU.S.S.G. range required a technical modification; however, thereduction of Hyatt’s total offense level from 46 to 44 did notresult in a substantive change to his U.S.S.G. imprisonment rangeinasmuch as the offense level remained above level 43, thehighest contained in the Sentencing Table. Consequently, thedistrict court affirmed Hyatt’s life sentence.


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file a second or successive motion to vacate his

conviction/sentence pursuant to 28 U.S.C. §§ 2255 and 2244.4

On or about December 21, 2012, the Sixth Circuit denied the

request. (R. 375: Order). Moreover, on or about February 08,

2013, the district court granted Hyatt’s motion to withdraw his

Rule 60(d) motion. (R. 377: Order).

On June 03, 2013, Hyatt filed the instant motion for relief

from final judgment pursuant to Rule 60(b), Federal Rules of

Civil Procedure. (R. 380: Motion, PageID #321-57).5

C. Argument and Authority.

1. Procedurally, Hyatt’s use of Civil Rule 60(b) isdefective.

Once a defendant’s chance to appeal has been exhausted or

waived, courts “are entitled to presume that [the defendant]

stands fairly and finally convicted.” United States v. Frady,

456 U.S. 152, 164-65 (1982).

Federal Rule of Civil Procedure 60(b) provides a mechanism

for seeking post-judgment relief and/or reopening of a case only

4 Hyatt’s filing with the Circuit Court used differentterminology but asserted claims similar/related to thosecontained in the filing with the district court under Civil Rule60(d).

5 Hyatt specifically identifies that his motion is pursuantto “Rule 60(b)(1) mistake and inadvertence; 60(b)(3) fraud andmisrepresentation by the government; 60(b)(4) void judgment &lack of subject matter jurisdiction; and 60(b)(6) any otherreason justifying relief.”


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under a limited set of circumstances. Gonzalez v. Crosby, 545

U.S. 524, 528 (2005); see also Civil Rule 60(b)(1)-(6). Rule

60(b) is generally a party’s exclusive avenue when seeking relief

from a final judgment or order in a civil matter. See United

States v. Beggerly, 524 U.S. 38, 46 (1998). Civil Rule 60(b)

provides in pertinent part:

On motion and upon such terms as are just, thecourt may relieve a party...from a final judgment,order, or proceeding for the following reasons: (1)mistake, inadvertence, surprise, or excusable neglect;(2) newly discovered evidence which by due diligencecould not have been discovered in time to move for anew trial under Rule 59(b); (3) fraud...,misrepresentation, or other misconduct by an opposingparty; (4) the judgment is void; (5) the judgment hasbeen satisfied, released, or discharged...; or (6) anyother reason that justifies relief.

Rule 60, like all Federal Rules of Civil Procedure, applies

in habeas proceedings, but only “to the extent that they are not

inconsistent with any statutory provisions or [the Rules

Governing Section 2255 Proceedings]” (See Rule 12, Rules

Governing Section 2255 Proceedings; see also Fed.R.Civ.P. 1).

Consequently, it is well settled that Fed.R.Civ.P. 60 does not

provide a vehicle for relief from a judgment in a criminal case.

See United States v. Gibson, 424 Fed. Appx. 461, 464 (6th Cir.

2011); United States v. Diaz, 79 Fed. Appx. 151, 152 (6th Cir.

2003); United States v. Fair, 326 F.3d 1317 (11th Cir. 2003).

However, that is exactly what Hyatt is trying to do by alleging


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his criminal conviction and sentence arise from a defective

indictment.

After all appellate review opportunities have been

exhausted, a criminal conviction may be properly attacked by

motion under 28 U.S.C. § 2255 - a procedure reserved for

transgressions of constitutional rights and for a narrow range of

fundamental defects, which if condoned, would result in a

miscarriage of justice. See Davis v. United States, 417 U.S.

333, 346 (1974); United States v. Vaughn, 955 F.2d 367 (5th Cir.

1992). There are strict time limits and other requirements for

challenging a conviction under § 2255, and it is well-established

that inmates may not bypass those requirements by purporting to

invoke some other procedure. United States v. Lambros, 404 F.3d

1034, 1036 (8th Cir. 2005). This restriction is not limited to

motions under Rule 60(b), but rather includes any motion that

asserts a federal basis for relief from the judgment of

conviction, or attacks the federal court’s previous resolution on

the merits. See e.g., United States v. Noske, 235 F.3d 405, 406

(8th Cir. 2000)(writ of coram nobis); Ruiz v. Norris, 104 F.3d

163, 164 (8th Cir.)(motion to recall mandate), cert. denied, 519

U.S. 1073 (1997); Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir.

1996)(Rule 60(b) motion).

In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme

Court held that Civil Rule 60(b) remains viable in the habeas


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context only to the extent it is “not inconsistent with” the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) and other

applicable federal statutory provisions and rules. Gonzalez, 545

U.S. at 533-34.

The proper treatment of a Rule 60(b) post-judgment motion

depends on the nature of the claim presented. When an inmate has

previously filed one or more § 2255 motions, it must be first

determined whether the filing is a proper 60(b) motion, or a

successive § 2255 motion masquerading as a Rule 60(b) motion.

See, e.g.,United States v. Winestock, 340 F.3d 200, 2007 (4th

Cir. 2003). Although a 60(b) motion constitutes a second or

successive petition “if it attacks the federal court’s previous

resolution of a claim on the merits,” that is not the case “when

a Rule 60(b) motion attacks some defect in the integrity of the

federal habeas proceedings.” Gonzalez v. Crosby, 545 U.S. 524,

532 (2005); see also Pridgen v. Shannon, 380 F.3d 721, 727 (3rd

Cir. 2004)(“[I]n those instances in which the factual predicate

of a petitioner’s Rule 60(b) motion attacks the manner in which

the earlier habeas judgment was procured and not the underlying

conviction, the Rule 60(b) motion may be adjudicated on the

merits”). A 60(b) motion that challenges a district court’s

failure to reach the merits of a petition based on the statute of

limitations does not constitute a second or successive habeas

petition. Gonzalez, 545 U.S. at 535-36; see also Pridgen, 380


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F.3d at 727-28 (allowing 60(b) motion that “attack[ed] the habeas

proceeding, rather than [the] underlying state conviction”).

However, that is not the case here, where Hyatt

unquestionably is attacking the criminal conviction. He does not

even mention his earlier § 2255 proceedings, let alone allege

“some defect in the integrity of the federal habeas proceedings”

which prevented the Court from reaching the merits of the claim.

See Gonzalez, 545 U.S. at 532. Rather, Hyatt focuses exclusively

on the criminal indictment giving rise to his conviction. He

repeatedly asserts the indictment “failed to state an offense”

because it did not include an independently charged “aggravated

offense” under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). In an

attempt to attack the indictment, Hyatt uses Rule 60(b) in a

“shot-gun” - and improper - fashion. In his motion, Hyatt relies

on Rule 60(b)(1) [“mistake or inadvertence”]; Rule 60(b)(3)

[“fraud and misrepresentation”]; Rule 60(b)(4) [void judgment /

lack of subject matter jurisdiction]; and Rule 60(b)(6) [“any

other reason justifying relief”]. In so doing, he raises claims

for relief on the merits rather than challenges to defects in a

prior collateral review proceeding.

As an example, he intimates (although does not develop) that

the Court proceeded against him mistakenly or inadvertently on a

defective indictment - while also claiming the Court and

government did so “fraudulently” - which negated subject matter


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jurisdiction and voided the judgment. However, all of this

conduct (in proceeding on a purportedly defective indictment)

occurred in the underlying criminal case, and well before the

commencement of his first § 2255 filing. Moreover, as a last

resort, Hyatt also cites Rule 60(b)(6)’s catch-all provision. He

offers nothing further than “imprisonment of the petitioner for

life based upon a fraudulent indictment” constitutes a grave

miscarriage of justice - thereby requiring relief.

Again, because Hyatt’s claims seek relief from the

underlying conviction and sentence, and not a habeas filing, they

are not properly asserted in a Rule 60(d) motion; rather, it is

quite clear they constitute a second and successive request for

relief under § 2255, which must first be presented to the

Appellate Court for consideration. Nailor v. United States, 487

F.3d 1018 (6th Cir.), cert. denied, 552 U.S. 937 (2007).

2. Substantively, Hyatt’s claim is without merit.

Again, Hyatt’s central complaint is that the indictment was

defective because it did not contain a substantive count of

distribution and/or possession with intent to distribute cocaine,

in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). This

claim has no merit.

The Supreme Court has long recognized that “the commission

of the substantive offense and a conspiracy to commit it are

separate and distinct offenses.” Pinkerton v. United States, 328


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U.S. 640, 643 (1946); see also, United States v. Van Hee, 531

F.2d 352, 357 (6th Cir. 1976)(“A conspiracy to commit a crime is

a different offense from the crime that is the object of the

conspiracy”). An equally well-settled corollary is that to

convict a defendant of conspiracy does not require proof that the

object of the conspiracy was achieved. See, e.g., United States

v. Fruehauf Corp., 577 F.2d 1038, 1071 (6th Cir. 1978)(“The gist

of the crime of conspiracy is the agreement to commit an illegal

act, not the accomplishment of the illegal act.” Here, the

superseding indictment alleged in part:

Beginning approximately in the fall of 1990 andcontinuing to at least on or about April 10, 1992, inthe Northern District of Ohio Eastern Division, andelsewhere, DAVID L. HYATT [and others] did knowinglyand unlawfully combine, conspire, confederate and agreetogether and with each other, and with diverse otherpersons presently known and unknown to the Grand Jury,to possess with the intent to distribute, anddistribute, cocaine, a Schedule II controlled substancein violation of Title 21, Sections 841(a)(1) and(b)(1)(A), United States Code.

After listing 21 overt acts the defendants and others committed

in furtherance of, and to effect the goals and conceal the

existence of the conspiracy, the indictment stated, “All in

violation of Title 21, Sections 846 and 841(b)(1)(A), United

States Code.”

An indictment is “a plain, concise and definite written

statement of the essential facts constituting the offense

charged.” Fed.R.Crim.P. 7(c)(1). The indictment must set forth


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the elements of the offense and adequately inform the accused of

the specific offense with which he is charged to shield him from

future jeopardy. Hamling v, United States, 418 U.S. 87, 117-18

(1974).

A controlled substance conspiracy indictment must specify,

at a minimum, the duration of the conspiracy and the statute

constituting the object of the conspiratorial agreement. United

States v. Penagaricano-Soler, 911 F.2d 833, 840 (1st Cir. 1990).

It is well settled that an indictment for conspiracy to commit an

offense, it is not necessary to allege with technical precision

all the elements essential to the commission of the offense which

is the object of the conspiracy. Wong Tai v. United States, 273

U.S. 77, 81 (1927); United States v. Reynolds, 762 F.2d 489, 494

(6th Cir. 1985). Further, the commission of an overt act is not

an element of a drug conspiracy; therefore, the indictment need

not (but may) allege specific overt acts. United States v.

Shabini, 513 U.S. 10, 12-13 (1994)).

Specific drug quantities now must be alleged to affect the

maximum statutory penalty (Apprendi v. New Jersey, 530 U.S. 466

(2000)) or support the imposition of a mandatory minimum

statutory penalty (Alleyne v. United States, 133 S.Ct. 2151

(2013)). However, neither Apprendi nor Alleyne were made

retroactive by the U.S. Supreme Court to cases on collateral

review. In fact, Hyatt unsuccessfully attempted to allege an


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Apprendi claim in § 2255 proceedings, and Alleyne is irrelevant

because Hyatt’s life sentence was not imposed pursuant to

statute, but rather is a product of the U.S. Sentencing

guidelines.

A review of the indictment and superseding indictment here

reveals that Hyatt was fairly advised of the time and place(s) of

his criminal conduct, the elements of the crime charged

(conspiracy), the object of the alleged conspiracy - “to

distribute and possess with the intent to distribute cocaine, a

Schedule II controlled substance in violation of Title 21

Sections 841(a)(1) and (b)(1)(A),” and of the fact that his

conspiratorial conduct was in violation of “Title 21, Sections

846 and 841(b)(1)(A), United States Code.” The superseding

indictment comfortably satisfies all statutory and constitutional

requirements, and cannot be viewed as failing to state an offense

giving rise to subject matter jurisdiction.

D. Conclusion.

For the reasons set forth above, the government submits that

Hyatt’s Civil Rule 60(b) motion is not properly before this

Court, as it seeks to advance one or more substantive claims, and

is in actuality, a second or successive petition under 28 U.S.C.


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§ 2255 which must first be presented to the Sixth Circuit Court

of Appeals. Moreover, his claim is without merit.

Respectfully submitted,

STEVEN M. DETTELBACHUNITED STATES ATTORNEY

By:

Samuel A. Yannucci (0018078)Assistant U.S. Attorney 2 South Main Street, Room 208Akron, OH 44308 Telephone: (330) 761-0518

FAX: (330) 375-5492 [email protected]

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was filed

electronically on this 14th day of August, 2013. Notice of this

filing will be sent by regular U.S. mail to:

David L. Hyatt Reg. No. 34927-054FMC ButnerP.O. Box 1600 Butner, NC 27509

Samuel A. Yannucci Assistant U.S. Attorney

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government brief hyatt.pdf

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