Kerrigan v. United States

Background

Charles Kerrigan, proceeding without a lawyer, moved under Federal Rules of Civil Procedure 59, 60, and 15 for reconsideration or amendment of the court’s August 8, 2022 order denying his request under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The court stated that Rule 15, which concerns amended and supplemental pleadings, did not apply. Because the motion was docketed 37 days after the earlier order, the court analyzed it under Rule 60(b), rather than Rule 59(e). The opinion also noted that the motion was dated September 1, 2022, but docketed on September 14, 2022; even using the earlier date, it was filed outside the applicable 10-day period.

In the underlying criminal case, docket number 16-CR-576, Kerrigan pleaded guilty to six counts arising from two bank burglaries and a witness-retaliation charge. The court imposed a total prison sentence of 200 months, three years of supervised release, forfeiture of $20,887,360.38, and a $600 mandatory special assessment. The court later ordered $30,584,812.22 in restitution. The Second Circuit affirmed the judgment of conviction. In the earlier § 2255 proceeding, the court denied Kerrigan’s claims, including claims that his sentencing counsel was ineffective for failing to challenge the loss amount or request a hearing concerning the victims’ losses.

Legal standard

Reconsideration is an extraordinary remedy generally available only when the moving party identifies controlling decisions or information that the court overlooked and that could reasonably change the result. Rule 60(b) permits relief from a final judgment, order, or proceeding for specified reasons, including fraud, misrepresentation, or misconduct by an opposing party, as well as other reasons justifying relief. In a proceeding under § 2255, however, Rule 60(b) relief is available only when the motion challenges the integrity of the earlier sentence-relief proceeding, rather than the underlying criminal conviction.

Claims of ineffective assistance of counsel are evaluated under a two-part test: the defendant must show that counsel’s performance fell below an objective standard of reasonableness and that the deficiency caused prejudice, meaning a reasonable probability that the result would have been different.

Court’s reasoning

The court concluded that Kerrigan’s motion challenged his attorney’s conduct during the 2018 sentencing proceeding in the underlying criminal case. Because he did not challenge the conduct of the attorney who filed his § 2255 motion, the court held that Rule 60(b) relief was unavailable.

The court further stated that, even if it considered Kerrigan’s challenge to the underlying conviction and sentence, the motion would still fail. The court had previously considered the claim that sentencing counsel was ineffective for not objecting to the loss amount in the presentence report and for not requesting a hearing concerning each victim’s loss. It held that counsel’s decision to forgo such a hearing was reasonable. The attorney explained that presenting additional evidence about losses could have given the court more cumulative factors to consider, including losses that were not solely financial. The court therefore found no deficient performance and no basis for reconsideration.

Disposition

The court denied Kerrigan’s motion for reconsideration and/or amendment. It also directed the clerk to close the open motion at ECF No. 14.