United States District Court, N.D. Ohio, Eastern Division
C. NUGENT UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Jorge Martinez's
Motion to Reopen Section 2255 Proceedings (ECF #340), and
Motion to Vacate the Judgments of Convictions Based on Rules
60(b)(2), (4), and (6). (ECF #342). For the reasons set forth
below, the Defendant's Motions are hereby DENIED.
Martinez was tried and convicted on multiple counts of health
care fraud, including two counts of health care fraud
resulting in death (Counts 59 and 60). In early 2006, he was
sentenced to the statutory maximum on all counts, including
the imposition of two life terms for Counts 59 and 60. Dr.
Martinez filed a motion for new trial, which was denied. (ECF
#227, 233). The Sixth Circuit upheld his conviction on
appeal. (ECF #243). Dr. Martinez then filed multiple
petitions under 28 U.S.C. §2255, none of which were
complaint with the applicable pleading requirements. (ECF
#263, 303). Having given Dr. Martinez a chance to re-file a
compliant petition, the Court struck the non-compliant
filings, dismissed the case with prejudice, and barred Dr.
Martinez from re-filing his petition. (ECF #268, 307, 309,
313). Dr. Martinez did not appeal that decision.
Martinez now contends that the Court's Order dismissing
his prior §2255 petition is void for lack of subject
matter jurisdiction because it was entered while he had a
appeal on a different matter pending before the Sixth
Circuit. It is true that Dr. Martinez had filed a Notice of
Appeal on two prior Court rulings, and that they were pending
at the time the Court issued its Order dismissing his
petition. It is also true that the filing of a timely Notice
of Appeal divests the District Court of jurisdiction over the
case pending resolution of the appeal. However, the two
orders that Dr. Martinez attempted to appeal were not final
appealable orders, and, therefore, the Court of Appeals did
not actually take over jurisdiction of the case during that
time. (ECF #315). Therefore, because the Court of Appeals
never actually had jurisdiction to hear the appeals in
question, this Court was not be divested of jurisdiction to
enter its Order dismissing the case, and the Order was valid.
to avoid any question of a need for appeal or further
litigation on this issue, the Court at this time, for all the
reasons stated in its prior Order (ECF #313) reaffirms and
re-enters its holding dismissing Dr. Martinez's petition
under 28 U.S.C. §2255 with prejudice, and barring him
from re-filing his petition.
Martinez also filed a Motion to Vacate the Judgments of
Convictions Based on the Rules of 60(b)(2), (4), and (6) of
the Federal Rules of Civil Procedure. He claims in this
motion that his conviction should be vacated based on newly
discovered evidence, “a void judgment, ” and
“in the interests of justice.”
60(b)motion must be made within a reasonable time, and for
subsection two, no more than a year after the entry of
judgment or order at issue. Fed.R.Civ.Pro. 60(c)(1). The
Sixth Circuit has held that a “district court does not
have the discretion to extend the period of limitations set
forth in Rule 60(b).” Smith v. Secretary of Health
and Human Services, 776 F.2d 1330, 1332 (6th
Cir. 1985). Dr. Martinez's motion under 60(b)(2) is,
therefore, clearly time barred. His only avenue for relief on
the basis of allegedly newly discovered evidence would be to
petition the Court of Appeals for the allowance of successive
petition under 28 U.S.C. §2255. However, this Court
would note, for the record, that the information Dr. Martinez
now suggests constitutes newly discovered evidence is neither
evidence, nor newly discovered. He refers to the Court's
in camera review of statements argued by the defense to be
admissible during Dr. Martinez's trial. This information
was known to the Defendant at the time of trial, and the
statements were deemed inadmissible at that time.
Martinez's arguments under 60(b)(4) and (6) fare no
better. These arguments rely principally on the same event
that underlies his 60(b)(2) allegations: the Court's in
camera review of statements to test their admissibility.
These claims are also untimely. The Petitioner in this case
filed his motion for relief approximately eleven years after
the judgment was issued in his case, even though he should
have been aware of the arguments at the time of his trial. In
the interim he had the opportunity to raise this issues
addressed in his motion in his direct appeals, and in his
first § 2255 motion, had he complied with the
requirements of those filings. The failure to raise this
issue sooner is without excuse or explanation, and the time
delay in filing the requested relief is not reasonable. The
motion is, therefore, time barred.
it had been timely filed, the motion would also be denied on
the merits. There is no reference to any newly discovered
evidence that would support reconsideration of his
conviction, and there is absolutely no grounds in fact or law
for Dr. Martinez's challenge to the Court's
jurisdiction. The information presented by the Petitioner
does not bring to light any information that was not or could
not have been raised and considered by the Court in the prior
proceedings. Finally, this motion appears to have been filed
as an attempt to avoid the Court's ban preventing Dr.
Martinez from re-filing of a petition under 28 U.S.C.
§2255. The Defendant may not avoid the consequences of
his failure to follow court rules and directives by merely
relabeling his request for relief as a Rule 60(b) motion.
of the above reasons, the Defendant's Motion to Reopen
Section 2255 Proceedings (ECF #340), and Motion to Vacate the
Judgments of Convictions Based on Rules 60(b)(2), ...