Case 3:03-cV-01618-P Document 29 Filed 01/05/10 Page 1 of 4 Page|D 148 iN THE UNI'I"ED S'l`A'I`ES DISTRICT COURT FOR 'I`HE NORTHERN DISTRIC'I` OF 'I`EXAS DALLAS DIVISION GARY EUGENE SIMS, § § Petitioner, § § VS. § Civil Aetion No. 3:03-CV-1618~P § DOUGLAS DRI`£'I`KE, Director, § Texas Departrnent ot` Crilninal Justice, § Correctional Institutions Division § § Respondent. § MEMORANDUM OPINION AND ORDIER Petitioner Gary Eugene Sims‘s July 23, 2009 motion to alter or amend pursuant to Ruie 60(1))(6) is summarily dismissed as a successive habeas petitionl l Sims was convicted of aggravated sexual assault With a deadly weapon and sentenced to life imprisonment His conviction and sentence Were affirmed on direct appeal. Sz'm.s' v. Stcile, No. 08~01-00121~CR, 2002 WL 1482389 (Tex. App. - Ei Paso, Jui. ll, 2002, pet rel‘d). Petitioner aiso filed an application for state post-conviction relief The application Was denied without Written order on the findings of the trial cout't. Ex parte St`ms, No. 55,495-02 ('I`ex. Crirn. App. Jun. 18, 2003). Petitioner then filed a petition for federal habeas relief on June 26, 2003. in that aetion, Sinis raised six grounds for relief, alleging that: (I) his conviction Was the result of perjured testimony', (2) his conviction was due to prosecutorial misconduct; (3) favorable evidenee, withheld by the prosecutor, would estabiish his innocence; (4) he was denied effective assistance of counsel; (5) the evidence was insufficient to support a deadly weapon iinding; and Case 3:03-cV-01618-P Document 29 Filed 01/05/10 Page 2 of 4 Page|D 149 (6) extraneous offense evidence was improperly admitted during the punishment phase of the trial. Sims's application for habeas relief was denied See winns v. Dretke, No. 3:03-CV~1618~P, 2003 WL 22862795 (N.D. Tex. Dect 2, 2003), rec. adopted 2003 WL 2311916£ (N.D. Tex. Dec. 30, 2003). An appeal of the habeas denial was dismissed on procedural grounds See Sims v. Drerke, No. 04-10158 (Sth Cir. Mar. 2, 2004). Sinis was denied leave to file a successive habeas petition See fn re Gary Eugene Sim's, l\lo. 09-}0480 (Sth Cir. July 7, 2009). The Fifth Circuit explained that Sirns's claims of ineffective assistance of appellate counsel, judicial error at trial, prosecutorial misconduct, and ineffective assistance of trial counsel were all discoverable at trial or, at the latest, when Sims's counsel filed an Anders brief on direct appeal in state court Id. Novv, Sims seeks relief under Rule 60(b)(6) of the F ederal Rules of Civil Procedure, claiming actual innocence due tot (l) ineffective assistance of state appellate counsel; (2) the improper admission of trial evidence; (3) prosecutorial misconduct; and (4) ineffective assistance of trial counsel For the reasons set forth beiow, his motion is summarily dismissed as a Successive habeas petition ll Under Rule 60(_b), a district court may grant relief front a final judgment for (l) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) a void judgment; or (5) a judgment that has been reversed or otherwise vacated FEIJ. R. CIV. P. 60(b)(l)-(5). The couit may also set aside ajudgment for "any other reason that justifies relief." FED. R. Cl\/. P. 60(b)(6). Relief under this “catch~all" provision is available, however, "only if extraordinary circumstances are present." He.rs v. Cockre!l, 281 F.3d 212" date_filed="2002-01-24" court="5th Cir." case_name="Jeffrey Hess v. Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division">281 F.3d 212, 216 (Sth Cir. 2002) (qnoting Bcn'!s v. Tow-Moror Forklg`]? Co., 66 i*`.3d 743, 747 (Sth Cir. 1995)). 'l`he burden of establishing at least one oftlie Case 3:03-cV-01618-P Document 29 Filed 01/05/10 Page 3 of 4 Page|D 150 Ruie 60(b) requirements is on the movant, and a determination of whether that burden has been met rests within the discretion of the court. Lave.s'pere v. Nr`ogarc: Mach. & ']`001 Works, fric., 9i0 li.2d 167, 173 (Sth Cir. 1990), abrogated on other grozmct'.s‘ by Lilt!e v. Lz`qm`d Air Corp., 37 F.3d 1069, 1075 n.14 (Sth Cir. 1994) (en banc). ilowever, it is well-settled in this circuit that "Ruie 60(b) motions seeking to amend or alter the judgment of a first habeas proceeding 'should be construed as successive habeas petitions."‘ Hess, 281 li`.3d at 214 (qzro!ing Fr'erro v. Jo/mson, 197 F.3d 147" date_filed="1999-12-22" court="5th Cir." case_name="Cesar Roberto Fierro v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division">197 F.3d 147, 15l (Sth Cir. l999)). ln the instant motion, Sims seeks to "aiter or amend [`_the] final order f:aiid:l judgement [sic] in the above numbered civil action in the United States l)istrict Court for the l\lorthern l)istrict of Texas, Dallas Division[.]“ 'l`hat is, Sims seeks relief under Rule 60(b)(6) in order to revisit the denial of his 2003 application for habeas relief. insofar as the Fifth Circuit has denied leave to file a successive habeas petition, this Court is withoutjurisdiction to consider Sim's allegations, and summary dismissal is required See 28 U.S.C. § 2244(b)(i). Even if Sims's Rule 60(b) motion is not treated as a subsequent petition and summarily dismissed petitioner has not shown he is entitled to relief See Hess, 281 F.Sd at 214-15 ("Whiie nothing on their face suggests that Rule 60(b) motions are to be seen as anything other than successive petitions, we need not decide here whether there are no circumstances under which they would not be, because relief under Rule 60(b) is, in any event, unavailable to l-less"). Sims raises allegations of error that were either raised in his earlier state and federal habeas applications, or that were available to him on direct and collateral review. I-le has utterly failed to set forth any "extraordinary circumstances" to justify relief. SO ORDERED. Case 3:03-cV-01618-P Document 29 Filed 01/05/10 Page 4 of 4 Page|D 151 . t _ »)7" DATI:SD this jj day of Januaiy, 2010. t/"M_' “, /"’4 /- ` //);,, 5a sits iot