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Cohen v. Rosenstein

United States District Court, D. Maryland

April 3, 2019

JEFFREY COHEN #58021-037 Plaintiff
ROD ROSENSTEIN, United States Attorney HARRY GRUBER, Asst. United States Attorney JOYCE McDONALD, Asst. United States Attorney KALLIOPI TSERKIS-MULLINS, Postal Inspector, USPS JASON BENDER, Special Agent, FBI Defendants


          Ellen L. Hollander United States District Judge.

         This civil case is rooted in the prosecution of Jeffrey Cohen, who is self-represented.

         On May 4, 2016, Cohen filed a Complaint For Declaratory Relief, pursuant to 28 U.S.C. § 1319 and Fed.R.Civ.P. 57. ECF 1. He sought declaratory and injunctive relief against the prosecutors and other government law enforcement personnel responsible for the execution of search and seizure warrants in regard to his criminal case. Cohen claimed, inter alia, that the warrants resulted in the confiscation of assets that Cohen argues precluded him from obtaining counsel of his choosing. Id.

         In a Memorandum (ECF 35) and Order (ECF 36) of August 7, 2018, the Court dismissed the suit. Soon after, on August 13, 2018, the Clerk docketed an Amended Complaint. ECF 37.[1]

         On October 15, 2018, Cohen filed a “Motion For Relief From Order” (ECF 44, “Motion”), pursuant to Rule 60(b), seeking to vacate ECF 36. He claims that he received the Clerk's “Roseboro Notification” on July 25, 2018, and wrote to Judge William Nickerson, to whom the case was then assigned, seeking an extension. ECF 44. He also alleges that he mailed the Amended Complaint on August 5, 2018, i.e., just before the Court issued ECF 35 and ECF 36. Id.

         This Memorandum resolves the Rule 60 motion. ECF 44. No. hearing is necessary to do so. For the reasons that follow, I shall deny the Motion.

         I. Background

         Cohen is presently incarcerated at the Federal Correctional Institution-Hazelton. On June 5, 2015, Cohen entered a plea of guilty to wire fraud, aggravated identity theft, false statements, and obstruction of justice (threatening an attorney). ECF 389.[2] On December 10, 2015, after several sentencing hearings, Judge William D. Quarles, Jr. sentenced Cohen to a 444-month term of imprisonment. ECF 590; ECF 594 (Judgment); ECF 595 (Statement of Reasons). See United States v. Cohen, Criminal No. GLR-14-0310 (D. Md.).[3] The conviction and sentence were upheld on appeal on April 25, 2018. United States v. Cohen, 888 F.3d 667 (4th Cir. 2018). The mandate issued on May 17, 2018. Id., ECF 684.

         While Cohen's criminal appeal was pending, he filed the underlying case, which was initially assigned to Judge Nickerson.[4] In the civil case, Cohen sued t h e two federal prosecutors in the criminal case, Harry M. Gruber and Joyce McDonald, as well then-Maryland United States Attorney Rod Rosenstein, postal inspector Kalliopi Tserkis-Mullins, and FBI Agent Jason Bender. Cohen alleged numerous instances of investigatory and prosecutorial misconduct regarding search and seizure warrants resulting in the confiscation of assets, including property and bank accounts, which Cohen argued precluded him from obtaining counsel of his choosing. ECF 1 at 5-15.

         Judge Nickerson denied Cohen's motion for injunctive relief on October 19, 2016, ECF 19, and entered a stay pending resolution of the criminal case. ECF 25. Thereafter, Cohen noted an interlocutory appeal as to several rulings of Judge Nickerson. In a per curiam opinion issued on June 8, 2017, the Fourth Circuit upheld the rulings as to the stay; the denial of injunctive relief; and the denial of a motion for reconsideration. ECF 30. And, it dismissed the claim denying Cohen's motion for counsel. The mandate followed on July 31, 2017. ECF 31.

         On September 28, 2017, following Judge Nickerson's retirement, the underlying case was reassigned to the Honorable J. Frederick Motz. On July 2, 2018, defendants moved to lift the stay and filed a motion to dismiss for lack of jurisdiction and for failure to state a claim. ECF 32.

         On July 20, 2018, the Clerk of Court issued correspondence to Cohen regarding the government's filing of the motion to dismiss. ECF 34. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Clerk advised Cohen of his right to file a response and of the consequences of failing to do so. Id. The letter, mailed to Cohen at his Bruceton Mills, West Virginia prison address, was not returned, and there is no indication that Cohen did not receive it. Indeed, in ECF 44, Cohen acknowledges that he received the notice on July 25, 2018.

         The Roseboro correspondence also reflects that the case was redesignated as Case “JFM-16-1346.” But, in his Motion, Cohen states that on July 25, 2018, he wrote to Judge Nickerson (instead of Judge Motz), asking for a 30-day extension to respond to the government's dispositive motion, because he could to access his legal files due to a prison lock-down. ECF 44, ¶ 2. There is no record of such an extension on the docket.

         Thereafter, the case was reassigned from Judge Motz to me. My review of the docket did not reveal an extension request from Cohen or an opposition to the government's dispositive motion. For the reasons stated in my Memorandum dated August 7, 2018 (ECF ...

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