The opinion of the court was delivered by: DuBOIS, J.
In this case, defendant Richard Ballard pled guilty to possession with intent to distribute cocaine and possession of a firearm and ammunition by a convicted felon. He was sentenced on March 22, 2006, to 180 months' imprisonment and is presently incarcerated at Low Security Correctional Institution--Allenwood. Presently before the Court is defendant's pro se Motion Pursuant to Rule 60(b)(6) and Request for Equitable Tolling or in the Alternative Allow Petitioner to Proceed Under F.R.Crim. P. 32(c)(3)(d) ("Defendant's Rule 60(b)(6) Motion"). In that motion, defendant argues that the Court should amend his Presentence Investigation Report ("PSR") because it contains untrue information that is negatively affecting his conditions of incarceration.*fn1 For the reasons set forth below, the Court denies Defendant's Rule 60(b)(6) Motion.
A detailed factual and procedural history of this case is included in the prior opinions of this Court and the Court of Appeals for the Third Circuit. See United States v. Ballard, 245 F. App'x 137 (3d Cir. 2007); United States v. Ballard, Cr. no. 03-810, 2009 WL 637384 (E.D. Pa. Mar. 11, 2009); United States v. Ballard, Cr. no. 03-810, 2005 WL 1690826 (E.D. Pa. July 18, 2005). This Memorandum sets forth only the facts essential to resolving Defendant's Rule 60(b)(6) Motion.
The prosecution of defendant arose from the Philadelphia Police Department's investigation of a report of a robbery and attempted shooting that took place on June 1, 2003. The Philadelphia Police Department received a complaint that defendant was among a group of five men who stole a necklace from the complainant and tried to shoot him. The complainant, Richard Felder, identified defendant as having fired several shots at him. After further investigation, officers secured an arrest warrant for defendant and a search warrant for his residence, which they executed on July 9, 2003. The officers arrested defendant at his home and recovered a handgun, a shotgun, narcotics, narcotics paraphernalia, and body armor.
Defendant was charged in the Municipal Court of Philadelphia County with, inter alia, robbery, aggravated assault, and various weapons and narcotics offenses. Docket nos. MC-51-CR-0751131-2003, MC-51-CR-0751531-2003 (Phila. Cnty. Mun. Ct.). The United States Attorney's Office adopted the prosecution, and, on December 9, 2003, a federal grand jury indicted defendant on six counts: (1) possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c) (Count I); (2) possession of cocaine base ("crack") in violation of 21 U.S.C. § 844(a)(1) (Count II); (3) possession of heroin, in violation of 21 U.S.C. § 841(a) (Count III); (4) possession of a firearm and ammunition after having been convicted in state court of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (Count IV); (5) possession of body armor after having been convicted of a crime of violence, in violation of 18 U.S.C. § 931 (Count V); and (6) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count VI). Thereafter, the Philadelphia District Attorney's Office withdrew all of the state charges, including those related to the alleged robbery and attempted shooting of Mr. Felder.
Defendant entered into a plea agreement with the government. On August 30, 2004, the Court held a plea hearing and accepted defendant's guilty plea to Counts I, IV, and VI of the Indictment. During the plea hearing, defendant acknowledged reading the agreement, discussing it with his attorney, and understanding it. Under the plea agreement, defendant expressly waived his rights to appeal or collaterally attack his conviction and sentence unless (1) the government appealed from defendant's sentence, (2) defendant's sentence exceeded the statutory maximum, or (3) the Court erroneously departed upward from the otherwise applicable guideline range. (Plea Agr., Docket no. 37--2, ¶ 9.) The Court later permitted defendant to withdraw his plea as to Count VI, concluding that defendant did not understand the nature of that count but that his plea was knowing and voluntary in all other respects. Ballard, 2005 WL 1690826, at *4--6.
Before defendant's sentencing hearing, the United States Probation Office prepared defendant's PSR and provided copies to defendant and his counsel. Paragraphs ten through fourteen of the PSR, which defendant challenges in his Rule 60(b)(6) Motion,*fn2 summarize the events leading to the Philadelphia Police Department's investigation of defendant in connection with the alleged robbery and attempted shooting of Mr. Felder. The relevant portion of the PSR states that Mr. Felder reported the incident by telephone but grew hostile while officers were transporting him to a police station to take a formal statement. Although Mr. Felder initially declined to enter the police station and left without giving a statement, he later returned and entered the station on his own. Before he returned, police ran a background check on Mr. Felder and learned that there was an active warrant for his arrest in connection with another crime. Accordingly, when Mr. Felder returned to the police station, they arrested him. While he was in custody, Mr. Felder gave a statement regarding the June 1, 2003, alleged robbery and shooting, stating that defendant had brandished a weapon and fired several shots. In summarizing these events, the PSR made clear that its recounting was "[a]ccording to incident reports" and that the Philadelphia Police Department never recovered bullet casings or other physical evidence in support of Mr. Felder's account. (PSR ¶¶ 11--12.)
Defendant's counsel raised eight objections to the PSR before the sentencing hearing, none of which involved the information in paragraphs ten through fourteen. The probation officer addressed each of these objections in the PSR Addendum, dated February 16, 2006. At the March 22, 2006, sentencing hearing, defendant acknowledged that he had received a copy of the PSR and reviewed it with his attorney. (March 22, 2006, Hr'g Tr. ("3/22/06 Tr.") 2--3.) Defendant's counsel presented additional oral objections to the PSR during the hearing, each of which the Court addressed before imposing sentence; none of those objections concerned Mr. Felder's allegations. As part of her argument regarding what sentence was appropriate, defendant's counsel argued that there was "no basis whatsoever to say that [defendant] was involved in a shooting" and that "the entire matter evaporated . . . possibly because the plaintiff waffled as to whether or not there was any shooting." (Id. at 83--84.) However, neither defendant nor his counsel challenged the inclusion of paragraphs ten through fourteen in the PSR, nor did they ask that those paragraphs be modified or amended in any way.
The Court imposed a sentence of 180 months' incarceration, to be followed by six years of supervised release. The sentence was the mandatory minimum term of imprisonment applicable to defendant under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), based on his conviction for a violation of 18 U.S.C. § 922(g) after having three prior convictions for a "violent felony or a serious drug offense." Despite having waived his appellate rights in the plea agreement, defendant filed an appeal. The Third Circuit affirmed defendant's conviction and sentence, concluding that the appellate waiver was valid and that the sentence did not implicate either exception permitting a direct appeal-an illegal sentence or an erroneous upward departure. Ballard, 245 F. App'x at 139--40. However, the Third Circuit did not address whether the collateral attack waiver was valid, stating instead that defendant could "raise an ineffective assistance of counsel claim on collateral review." Id. at 139.
On December 8, 2008, defendant filed a Pro Se Motion to Have Sentence Vacated, Set Aside, and/or Corrected Pursuant to 28 U.S.C. § 2255, in which he argued, inter alia, that he should not have been sentenced pursuant to the ACCA because there was no factual basis for the three prior convictions to which he stipulated in the plea agreement. Noting that defendant's statements at the plea hearing and at sentencing, as well as the plea agreement, contradicted defendant's argument, the Court concluded that defendant validly waived his appellate and other post-conviction rights and was not entitled to relief. Ballard, 2009 WL 637384, at *7--8. Notwithstanding this conclusion, the Court addressed the merits of defendant's claims. It rejected his argument regarding the ACCA and his claims that he was incompetent to plead guilty due to medication, that he had only two prior convictions instead of three, that his prior convictions arose from inadequate plea colloquies, and that his attorneys had been ineffective. Id. at *8--12.
In his Rule 60(b)(6) Motion, defendant argues that "untrue, adverse information" in paragraphs ten through fourteen of the PSR "is having a direct adverse impact on decisions made by the prison officials . . . at [Low Security Correctional Institution--Allenwood] with respect to [defendant's] security level, institutional placement, halfway house consideration and camp placement." (Def.'s R. 60(b)(6) Mot. 2--3.) Specifically, he avers that the PSR contained "uncharged, unindicted, unconvicted conduct of an entirely different offense" that is "not accurate or relevant and is not part of the instant convicted conduct." (Id. at 9.) He includes documentation from the Philadelphia Police Department that he claims "prove[s] beyond a doubt that [he] had nothing to do with the shooting." (Id. at 12; see also id. Exs. A--O.) He argues that the Court should "[o]rder the [United States] Probation [Office] to amend the PSR" under Rule 60(b)(6)*fn3 or "[Federal Rule of Criminal Procedure] 32(c)(3)(D)" because "all post conviction avenues of relief have been defaulted, due to counsel of record's deficient performance by not challenging these unsubstantiated statements." (Id. at 10, 12.)
The government asserts that defendant's motion should be denied for three reasons. First, defendant's motion is a collateral attack on his conviction, and defendant waived his collateral-attack rights in his plea agreement. (Gov't Resp. Def.'s Mot. Relief R. 60(b)(6) ("Gov't Opp'n") 3--4.) Second, even if defendant could attack his sentence, Federal Rule of Civil Procedure 60(b)(6) does not apply to criminal cases except in very limited circumstances where a defendant challenges procedural aspects of a prior 28 U.S.C. § 2255 habeas proceeding.
(Id. at 4--7.) Third, the inclusion of the challenged paragraphs in the PSR was proper. (Id. at 7-- 10.)
The Court agrees that defendant's motion should be denied for the three reasons advanced by the government. The Court ...