Simon v. United States

Background

Daryl Simon pleaded guilty to credit card fraud in 2007, later failed to appear for sentencing, and was charged with failing to appear and with two counts of access-device fraud. He pleaded guilty under a plea agreement in January 2010 and was sentenced to 285 months in prison.

In 2012, Simon filed a petition under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. He argued that his attorney, Richard D. Willstatter, had provided ineffective assistance by failing to investigate the government’s calculations of the number of victims and the amount of loss used in the sentencing process. Simon also argued that the government breached the plea agreement.

The court denied the plea-agreement claim and held an evidentiary hearing on the ineffective-assistance claim. In a November 18, 2015 order, the court credited Willstatter’s testimony and found that his decision not to seek additional discovery was a reasonable strategy because further investigation might have uncovered more victims and greater losses. The court denied Simon’s petition. The Second Circuit later affirmed, holding that Simon had not met the requirements for filing a successive § 2255 petition.

Simon’s Rule 60(b) motion

In July 2017, Simon moved under Rule 60(b) of the Federal Rules of Civil Procedure for reconsideration of the November 2015 order. Rule 60(b) permits relief from a final judgment or order in limited circumstances, such as mistake, newly discovered evidence, fraud, or other exceptional reasons. In a habeas proceeding, meaning a proceeding challenging the legality of a conviction or sentence, the rule generally addresses defects in the prior proceeding itself rather than rearguing the conviction or sentence.

Simon made five arguments: the 2015 order was not properly served; the court misunderstood the law concerning ineffective assistance; the court misunderstood Willstatter’s strategy; the court failed to notify him of pleading deficiencies and allow amendment under Rule 12(b)(6); and his habeas counsel, Aaron M. Goldsmith, was constitutionally ineffective during the evidentiary hearing.

Court’s analysis

The court first ruled that the 2015 order was properly served. Although Simon initially litigated without a lawyer, Goldsmith had appeared as his attorney before the order was issued and was a registered user of the court’s electronic filing system. Service on Goldsmith therefore satisfied the applicable service rules.

The court also ruled that the motion was untimely. Simon filed it about one year and eight months after the 2015 order, without explaining the delay. The court noted that Rule 60(b) generally requires filing within a reasonable time and imposes a one-year limit for certain grounds. The court also noted that the local rule generally requires a motion for reconsideration within fourteen days.

The court further held that the motion would be denied even if it had been timely. Simon’s arguments about Willstatter’s investigation, the victim and loss calculations, and Goldsmith’s questioning at the evidentiary hearing either repeated arguments about the underlying sentence or did not show a defect in the prior habeas proceeding. The court stated that a reconsideration motion cannot substitute for an appeal.

The court rejected Simon’s argument that it should have treated his petition as failing to state a claim and given him an opportunity to amend because the court had not dismissed the petition under Rule 12(b)(6). Instead, it had held an evidentiary hearing and found that the factual record did not support Simon’s claims. The court treated this argument as abandoned because Simon did not address it in his reply.

The court also rejected Simon’s ineffective-assistance argument concerning Goldsmith because Simon provided no factual basis showing exceptional circumstances that would justify relief under Rule 60(b).

Disposition

The court denied Simon’s motion for reconsideration. It directed the Clerk of Court to terminate the motions, mail Simon a copy of the order, and terminate Goldsmith and Louis V. Fasulo as attorneys in the case.