Case 1:09-cr-00406-TCB-JFK Document 324 Filed 10/28/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

UNITED STATES OF AMERICA, v. BENJAMIN STANLEY, Defendant.

) ) ) CRIMINAL ACTION FILE ) ) NUMBER 1:09-cr-406-TCB-JFK-2 ) ) )

ORDER This matter is before the Court on Defendant Benjamin Stanleys motion for new trial and evidentiary hearing per FRCIVP 59(b) & motion to deny judges acceptance of report and recommendation & denial of FRCIVP 60(b) and summary judgment [323]. As the Court has explained previously, Federal Rule of Civil Procedure 60(b) simply does not provide for relief from judgment in a criminal case . . . . United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998). Likewise, Federal Rule of Civil Procedure 59 governs civil cases. Stanley seeks a new trial in his criminal conviction, so the rule does not apply. Even if the Court construed Stanleys motion liberally as one for a

Case 1:09-cr-00406-TCB-JFK Document 324 Filed 10/28/13 Page 2 of 2

new trial under Federal Rule of Criminal Procedure 33, he is still not entitled to relief. That rule permits a motion only within fourteen days of the verdict unless new evidence is discovered. Stanley is far beyond the fourteen day time period and he does not claim to have discovered new evidence. In any event, an appeal is pending in this case, see No. 12-11126-D, and [i]f an appeal is pending, the [district] court may not grant a motion for a new trial until the appellate court remands the case. FED. R. CRIM. P. 33(b)(1). To the extent that Stanley objects to the Courts adoption of Magistrate Judge Kings report and recommendation, he is free to appeal that ruling to the Eleventh Circuit Court of Appeals. See, e.g., Macort v. Prem, Inc., 208 Fed. Appx 781 (11th Cir. 2006) (discussing proper standard of review on appeal of a district courts adoption of a report and recommendation). Stanleys motion [323] is DENIED. IT IS SO ORDERED this 28th day of October, 2013.

___________________________ Timothy C. Batten, Sr. United States District Judge

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