Sholam Weiss v. Warden

Case: 16-17384 Date Filed: 07/24/2017 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-17384
Non-Argument Calendar
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D.C. Docket No. 5:02-cv-00204-WTH-PRL

SHOLAM WEISS,
Petitioner-Appellant,

versus

WARDEN,

Respondent-Appellee.

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Appeal from the United States District Court
for the Middle District of Florida
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(July 24, 2017)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

Sholam Weiss, a federal prisoner proceeding pro se, appeals from the district

court’s order denying his Federal Rule of Civil Procedure 60(b) motion to set aside

a final judgment in his habeas corpus proceedings under 28 U.S.C. § 2241. Years
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ago, Weiss was charged with 78 counts of wire fraud, money laundering, and

obstruction of justice arising out of the failure of the National Heritage Life

Insurance Company. Before the jury finished deliberating, Weiss fled the country.

The jury convicted him in absentia on all counts, and in 2000, the district court

sentenced him to a total of 845 years’ imprisonment. Weiss was eventually

apprehended in Austria, and after extensive extradition negotiations, Austria

agreed to extradite Weiss on all counts except Count 93, the obstruction count.

Thereafter, the government moved the district court to resentence Weiss without

Count 93, noting that the “principle of specialty” prohibited punishment of a

fugitive for any crimes for which he had not been extradited. The district court

denied the motion, holding that it lacked jurisdiction to modify Weiss’s sentences.

In July 2002, Weiss filed a motion for relief under 28 U.S.C. § 2241, arguing

that the Austrian government had extradited him in reliance on the United States’

misrepresentations that he would be entitled to a full re-sentencing after Count 93

was removed from his conviction, and, then, a plenary appeal of his convictions

and total sentence. In 2009, the district court determined that it would consider

evidence concerning Austria’s expectations as to the relief Weiss should be granted

in light of Austria’s refusal to extradite on Count 93. The evidence included a

translated copy of a June 2008 correspondence from the Austrian government

explaining, inter alia, that Austria had expected the extradition to result in “the

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assessment of a new sentence.” Ultimately, the district court granted Weiss’s §

2241 petition, in part, by eliminating Count 93, reentering a new sentence without

Count 93, and imposing an 835-year, rather than an 845-year, total sentence. We

affirmed. Weiss v. Yates, 375 F. App’x 915, 917 (11th Cir. 2010) (unpublished).

In 2016, Weiss filed the present motion in his § 2241 proceedings, seeking

relief from the district court’s 2009 judgment under Rule 60(b). With the motion,

Weiss provided a 2016 diplomatic letter from the Austrian government, claiming it

“clarified” Austria’s expectation that Weiss would receive a full resentencing

without the obstruction count. Weiss argued that the district court had misread the

2008 Austrian correspondence when it concluded in 2009 that Austria’s

expectations would be satisfied if it simply removed the sentence on that count.

In this appeal, Weiss argues that the district court improperly construed his

motion as relying on Rule 60(b)(2)’s “newly discovered evidence” provision,

under which it was untimely, and that the motion instead fell under the “any other

reason” provision of Rule 60(b)(6). After thorough review, we affirm.

We review the denial of a motion for relief from judgment under Federal

Rule of Civil Procedure 60(b) for abuse of discretion. Howell v. Sec’y, Fla. Dep’t

of Corrs., 730 F.3d 1257, 1260 (11th Cir. 2013). Rule 60(b) allows a district court

to relieve a party from a final judgment for multiple reasons, several of which are

expressly enumerated in Rule 60(b)(1)-(5). Fed. R. Civ. P. 60(b). Included in

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these expressly enumerated reasons is “newly discovered evidence that, with

reasonable diligence, could not have been discovered in time to move for a new

trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). Rule 60(b)(6), in turn, allows the

district court to grant relief for “any other reason” in addition to those expressly

listed in subsections (1) through (5). Fed. R. Civ. P. 60(b)(6). A Rule 60(b)(2)

motion relying on newly discovered evidence must be made within one year of the

entry of judgment. Fed. R. Civ. P. 60(c)(1). By contrast, Rule 60(b)(6) motions

are not subject to the one-year limitations period, and only have to be made within

a “reasonable time.” Id.

A habeas petitioner who seeks relief under Rule 60(b)(6) must prove

“extraordinary circumstances” justifying the reopening of a final judgment.

Howell, 730 F.3d at 1260. In other words, a Rule 60(b)(6) movant must persuade

the court that the circumstances are sufficiently extraordinary to warrant relief.

Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000). And

even if that showing is made, the question of “whether to grant the requested relief

is . . . a matter for the district court’s sound discretion.” Id. It is not enough, on

appellate review, that the grant of a Rule 60(b) motion was permissible or

warranted; rather, the denial of the motion must have been sufficiently

unwarranted as to amount to an abuse of discretion. Cano v. Baker, 435 F.3d

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1337, 1342 (11th Cir. 2006). The movant must therefore “demonstrate a

justification so compelling that” vacation of the judgment was required. Id.

We’ve held that Rule 60(b)(6) relief is inappropriate where the case falls

into one of the other categories listed in subsections (1)–(5) of Rule 60(b). United

States v. Real Prop. & Residence Located at Route 1, Box 111, Firetower Rd.,

Semmes, Mobile Cty., Ala., 920 F.2d 788, 791 (11th Cir. 1991) (“Firetower Rd.”).

In Firetower Rd., we held that the district court erred in relying on Rule 60(b)(6) in

granting post-judgment relief because the case fit within Rule 60(b)(1)’s mistake,

inadvertence, or neglect umbrella. Id.; see also Solaroll Shade & Shutter v. Bio–

Energy Sys., 803 F.2d 1130, 1133 (11th Cir. 1986) (“[T]his Court consistently has

held that [Rules] 60(b)(1) and (b)(6) are mutually exclusive.”).

In Klapprott v. United States, the Supreme Court applied Rule 60(b)(6) to a

situation in which a petitioner, wrongfully imprisoned during denaturalization

proceedings, had been unable to interpose in those proceedings and became subject

to a default judgment. 335 U.S. 601, 602-03, 607-08 (1949). The Court rejected

the argument that his Rule 60(b) motion relied on “excusable neglect” and that he

could not avail himself of the “any other reason” clause of Rule 60(b)(6),

concluding that his “allegations set up an extraordinary situation which [could not]

fairly or logically be classified as mere ‘neglect.’” Id. at 613. In other words, the

motion did not rely on the “excusable neglect” provision of Rule 60(b). Id.

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Here, the district court did not abuse its discretion in denying Weiss’s

motion to reopen the final judgment in his 28 U.S.C. § 2241 habeas proceedings.

For starters, the district court correctly construed the motion as relying on Rule

60(b)(2)’s “newly discovered evidence” provision. The new communications from

Austrian officials constituted evidence of the Austrian government’s expectations

for Weiss’s extradition and the results thereof. We’ve specifically held that Rule

60(b)(6) relief is inappropriate when the motion fits into one of the grounds listed

in subsections (1)–(5). Firetower Rd., 920 F.2d at 791; Solaroll Shade, 803 F.2d at

1133. Unlike Klapprott, where the petitioner’s situation was so extraordinary that

his failure to interpose could not be classified as mere neglect, 335 U.S. at 613, the

2016 correspondence, while unique, was still evidence concerning a question

expressly decided in the underlying final judgment, based on extensive evidence

provided by both parties. Because the motion fell more naturally under the “newly

discovered evidence” provision, Rule 60(b)(6) could not be used to justify relief.

Firetower Rd., 920 F.2d at 791. Accordingly, Weiss’s motion was properly

construed as falling under Rule 60(b)(2), and it failed because it was brought more

than one year after the entry of judgment in this case. See Fed. R. Civ. P. 60(c)(1).

But even if Weiss’s motion falls under Rule 60(b)(6), the district court

arguably considered it under that rule, and did not abuse its discretion in denying

it. As the record shows, the district court expressly said that the 2016 Austrian

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correspondence would “do nothing more than create an apparent conflict” with the

June 2008 communications, and that there was no just cause to set aside the final

judgment. And if we were to assume that Rule 60(b)(6) relief was possible or

warranted, nothing in the record would suggest that the denial of the motion was so

“unwarranted as to amount to an abuse of discretion” or that Weiss’s justification

was so compelling that vacation of the judgment was required. Cano, 435 F.3d at

1342. In Klapprott, the petitioner’s wrongful imprisonment prevented him from

defending himself in his denaturalization proceedings, 335 U.S. at 602-03, 607-08;

here, however, Weiss has had the full opportunity to litigate the issue of Austria’s

understanding of the conditions of extradition, both in the district court and in this

Court on appeal. Moreover, Weiss obtained relief -- Count 93 was removed from

the judgment, his total sentence was recalculated, and the court allowed him to

pursue a direct appeal of his criminal convictions and sentences in Weiss I.

Accordingly, Weiss has had ample opportunity to seek justice in this case, and the

record does not show that the district court abused its discretion in denying his

post-judgment motion under either Rule 60(b)(2) or Rule 60(b)(6).1

AFFIRMED.

1
We note that Weiss originally designated, in his notice of appeal, the denial of his
motion to reconsider the order denying his Rule 60(b) motion, but his appellate brief focuses
solely on the denial of his motion for relief from judgment and contains no express argument
regarding the denial of the motion to reconsider. Accordingly, Weiss has abandoned any claim
with respect to the denial of his motion to reconsider. See Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008).
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