Towne v. United States

106 F. App'x 755

• Court: Court of Appeals for the Second Circuit
• Decided: August 25, 2004
• Docket: No. 04-0714-PR
• Status: Published

Opinion

SUMMARY ORDER

Edwin A. Towne, Jr., appeals the January 9, 2004 order of the District Court denying Towne’s motion — filed “pursuant to Federal Rule of Civil Procedure 60(b) or any other available Rule or Remedy” — to vacate, set aside, or correct his 1988 federal convictions for possession of firearms as a felon. Towne asserted that his trial counsel failed to properly advise him on the benefits of a purported plea offer, in violation of his Sixth Amendment right to the effective assistance of counsel.

The District Court construed Towne’s motion as an application — Towne’s fifth— to file a second or successive 28 U.S.C. § 2255 petition and transferred the motion to this Court in accordance with the Anti-terrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214. By order dated September 20, 2001, we denied application to our Court as unnecessary and remanded the matter to the District Court for consideration of Towne’s motion pursuant to Rule 60(b). See Towne v. United States, No. 01-3778 (2d Cir. Sept. 20, 2001) (order with respect to application for leave to file a successive § 2255 petition).

On remand, the District Court determined that Towne had articulated a reasonable basis for amendment of his original § 2255 petition, filed in 1993, and the Court proceeded to consider the merits of Towne’s Sixth Amendment claim. After an evidentiary hearing, the Court, on January 9, 2004, denied Towne’s motion. Towne timely appealed.

We believe, in retrospect, that Towne’s so-called Rule 60(b) motion was, in effect, a successive habeas petition, and that Towne’s characterization of the motion as one under Rule 60(b) “or any other available Rule or Remedy” was a deliberate end-run around the requirements for permitting successive habeas petitions. We recognize, however, that we are bound by the decision of a prior panel directing the District Court to consider the so-called Rule 60(b) motion. See id. Accordingly, we resolve the appeal on the merits, but we take this opportunity to alert other courts and panels of our Court of the possibility that motions by Towne not characterized as second or successive petitions nevertheless may seek to serve effectively in that manner.

On the merits, after considering the papers and arguments of the parties, we conclude, for substantially the reasons stated by the District Court, that Towne’s motion should be denied. Accordingly, the order of the District Court is hereby AFFIRMED.