1:04-cr-10019 | W.D. La. | Feb 22, 2012
Case 1: O4-cr-10019-DDD-.]DK Document 194 Filed 02/22/12` Page 1 of 3 Page|D #: 736
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WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
UNITED STATES OF AMERICA CRIMINAL NO. 04-10019/02
-vs- JUDGE DRELL
JULIUS L. JACKSON MAGISTRATE JUDGE KIRK
RULING AND ORDER
Before the Court is Petitioner’s request (Document No. 190) for further information
regarding our December 23, 2011 Order. (Document No. 186.) A brief recitation of the
case history is appropriate at this point.
ln l\/larch 2008, Petitioner filed a Motion to Vacate Sentence under 28 U.S.C. § 2255.
(Document No. 139.) By Judgment dated August 26, 2008, We adopted the Magistrate
Judge’s Report and Recomrnendation and denied Petitioner’s § 2255 motion. (Document
No. 149.) Petitioner appealed that Judgment, and, in due course, the United States Court
of Appeals for the Fifth Circuit denied Petitioner’s request for a Certificate of
Appealability, finding Petitioner had failed to show “that reasonable jurists Would find
the district Court’s assessment of the constitutional claims debatable or Wrong. ”
(Document No. 163.)
On December 1 5, 20 1 1, Petitioner filed a Motion for Reconsideration of the August
26, 2008 Judgment and cited as his authority Fed. R. Civ. P. 60(b). (Document No. 185.)
Case 1:O4-cr-10019-DDD-.]DK Document 194 Filed 02/22/12 Page 2 of 3 Page|D #: 737
In that document, Petitioner reasserted many of the constitutional claims he had made
in support of his § 2255 motion, and he asked that his claim be reopened
After a thorough review of the record, the Motion for Reconsideration was denied
“ as untimely, frivolous and without merit" by Order dated December 23, 20 1 1 (Document
No. 186), the Order at issue here.
Petitioner now complaints the December 23, 2011 Order was inappropriate,
because it did not contain a thorough explanation of the grounds for denial.
Fed. R. Civ. P. 60(b) provides an avenue through which a district court may
provide relief from a final judgment, order, or proceeding for various enumerated re asons.
Petitioner specifically claims subsections (5) and (6) are applicable to his claim. Those
provisions provide:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons: . . . (5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6) any other reason that
justifies relief.
In this case, the judgment of which Petitioner complains has not been satisfied
or discharged, and it is not based on an earlier judgment that has been reversed or
vacated. Plaintiff, therefore, must be arguing that it is no longer equitable to apply the
denial of his § 2255 petition prospectively
This argument is not persuasivel As noted above, the appellate court denied
Petitioner’s request for a Certificate of Appealability on constitutional grounds. No
equitable argument remains. The matter has been decided on appeal.
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As to the “catch-all" provision found in Rule 60(b)(6), “any other reason that
justifies relief, " the Fifth Circuit has made it clear this section applies in “extraordinary
circumstances," and it is not meant as a substitute for an appeal. _S§§ Hess v. Cockrell,
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 (5th Cir. 2002); U.S. v. Green, 348 Fed. Appx. 917, 918 (5th Cir. 2009)
(unpublished). No such circumstances are present in this case.
Additionally, Fed. R. Civ. P. 60(c) requires that motions under Rule 60(b) “must be
made within a reasonable time. ” More than three (3) years after the Judgment is not a
reasonable time.
For these reasons, Plaintiff’s Motion to Reconsider (Document No. 190) is DENIED.
The underlying dismissal was correct.
§§
SIGNED on thisg day of February, 2012 at Alexandria, Louisiana.
DEE D. DRELI.. `
UNITED STATES DISTRICT JUDGE