670 F. App'x 386
5th Cir.
2016

MANUEL ENRIQUE PEREZ-VILLARREAL v. UNITED STATES

No. 15-20354

United States Court of Appeals, Fifth Circuit

October 19, 2016

386

Summary Calendar

Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, for Plaintiff-Appellee.

Manuel Enrique Perez-Villarreal, Pro Se.

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

The Federal Public Defender appointed to represent Manuel Enrique Perez-Villarreal has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Perez-Villarreal has filed a response. The record is not sufficiently developed to allow us to make a fair evaluation of Perez-Villarreal‘s claims of ineffective assistance of counsel; we therefore decline to consider the claims without prejudice to collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).

We have reviewed counsel‘s brief and the relevant portions of the record reflected therein, as well as Perez-Villarreal‘s response. We concur with counsel‘s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. The motion for the removal of counsel and the appointment of new counsel is DENIED.


Bruce A. ROGERS, Plaintiff-Appellant v. Shawna Talbot BOATRIGHT, Supervisor, Texas Department of Criminal Justice-Correctional Institution Division; Jose L. Garcia, Jr., Transportation Driver, Security; Herbert J. Garcia, Transportation Driver, Security; Joel Garcia, Defendants-Appellees

No. 15-20354

United States Court of Appeals, Fifth Circuit

Filed October 19, 2016

Bruce A. Rogers, Pro Se.

Patrick Nicholas Brezik, Assistant Attorney General, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX, for Defendant-Appellee SHAWNA TALBOT BOATRIGHT.

Kimberly L. Kauffman, Assistant Attorney General, Office of the Attorney General for the State of Texas, Patrick Nicholas Brezik, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Defendant-Appellee JOSE L. GARCIA, JR.

Patrick Nicholas Brezik, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Defendant-Appellee HERBERT J. GARCIA.

Kimberly L. Kauffman, Assistant Attorney General, Office of the Attorney General for the State of Texas, Celamaine Cunniff, Assistant Attorney General, Office of the Attorney General, Law Enforcement Defense Division, Austin, TX, for Defendant-Appellee JOEL GARCIA.

Before REAVLEY, OWEN, and ELROD, Circuit Judges.

PER CURIAM:*

Bruce A. Rogers, Texas prisoner # 566928, has appealed the district court‘s order denying his motion under Federal Rule of Civil Procedure 60(b)(6) to reopen this civil rights lawsuit, which was voluntarily dismissed on Rogers‘s motion. Rogers contends that he has shown that he was prevented from pursuing his civil rights claims by circumstances related to an illness and that the defendants have not shown that they will be prejudiced if his lawsuit is reopened. He argues that he should be permitted to proceed with his civil rights claims in the interests of justice.

Under Rule 60(b)(6), a court may relieve a party from a final judgment for “any other reason that justifies relief.” FED. R. CIV. P. 60(b)(6). Such a motion must be made “within a reasonable time,” unless good cause can be shown for delay.” In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004) (quoting FED. R. CIV. P. 60(c)(1)). A Rule 60(b)(6) motion will be granted only in extraordinary circumstances. Yesh Music v. Lakewood Church, 727 F.3d 356, 363 (5th Cir. 2013). “Accordingly, Rule 60(b)(6) requires a showing of manifest injustice and will not be used to relieve a party from the free, calculated, and deliberate choices he has made.” Id. (internal quotation marks and citation omitted). “Rule 60(b)(6) should not be used to undo the damage done by a poor strategic decision.” Id.

At most, Rogers‘s illness provides good cause excusing his 14-month delay in moving for relief under Rule 60(b)(6). Rogers has not shown that the district court‘s denial of his Rule 60(b)(6) motion will result in a manifest injustice. See id. Extraordinary circumstances requiring relief under Rule 60(b)(6) are not present and have not been shown. See id. The district court‘s order is

AFFIRMED.

Notes

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.