Lester Ruston v. Eric Holder

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motions to proceed in forma pauperis (FRAP 24) [999180924-2], [999172021-2]; denying Motions to expand the record on appeal, for an injunction and for appointment of counsel [999172004-2], [999180923-2]. Originating case number: 5:12-hc-02090-BO. Copies to all parties and the district court/agency. [999226525].. [13-6968]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6968

LESTER JON RUSTON,
Petitioner – Appellant,
v.
U.S. ATTORNEY
SAMUELS,

GENERAL

ERIC

HOLDER;

DIRECTOR

CHARLES

E.

Respondents - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:12-hc-02090-BO)

Submitted:

October 22, 2013

Decided:

October 25, 2013

Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lester Jon Ruston, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Lester Jon Ruston appeals the district court’s order
denying Ruston’s motion to reconsider, pursuant to Rule 60(b) of
the Federal Rules of Civil Procedure, its order denying relief
on his 28 U.S.C. § 2241 (2006) petition. 1

We affirm.

We review the denial of a Rule 60(b) motion for abuse
of discretion.
269,

277

(4th

propriety

of

underlying
judgment

MLC Auto., LLC v. Town of S. Pines, 532 F.3d
Cir.

Rule

60(b)

judgment.

under

2008).

Rule

Our

relief

Id.
60(b)

review

and

is

limited

to

the

not

extend

to

the

A

movant

seeking

relief

from

must

make

does

a

threshold

showing

a
of

“timeliness, a meritorious defense, a lack of unfair prejudice
to the opposing party, and exceptional circumstances.”

Dowell

v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th
Cir. 1993) (internal quotation marks omitted).
is

made,

the

movant

also

must

demonstrate

If this showing
one

enumerated grounds for relief under Rule 60(b).

of

the

six

See Fed. R.

Civ. P. 60(b); Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94 (4th
Cir. 1997); see also Aikens v. Ingram, 652 F.3d 496, 500-01 (4th

1

To the extent Ruston seeks to appeal the underlying
judgment denying Ruston’s § 2241 petition, we lack jurisdiction
to address this order, as his notice of appeal is timely only as
to the order denying Rule 60(b) relief.
See Fed. R. App. P.
4(a)(1)(B) (providing sixty-day appeal period), 4(a)(4)(A)(vi)
(addressing tolling pending disposition of Rule 60(b) motion).

2

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Cir. 2011) (en banc) (addressing requirements for relief under
Rule 60(b)(6)).
We have reviewed the record and discern no abuse of
discretion,

as

we

conclude

that

Ruston

did

requisite showing for relief under Rule 60(b). 2

not

make

the

Accordingly,

although we grant leave to proceed in forma pauperis, we affirm
the district court’s order.

We deny Ruston’s motions to expand

the record on appeal, for an injunction, and for appointment of
counsel.
legal
before

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

2

Additionally, while Ruston raises a claim of judicial bias
in his informal brief, we find nothing in the record to support
these allegations.
Rather, Ruston’s assertions appear to be
based on his disagreement with the substantive rulings made by
the district court. See Shaw v. Martin, 733 F.2d 304, 308 (4th
Cir. 1984) (“Alleged bias and prejudice to be disqualifying must
stem from an extrajudicial source and result in an opinion on
the merits on some basis other than what the judge learned from
his participation in the case.”).

3