McLeod v. Harrelson, et al(INMATE3)
OPINION. Signed by Honorable Judge Myron H. Thompson on 5/28/13. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JACKIE McLEOD, # 116274-A, )
) Civil Action No.
E.L. HARRELSON, et al.,
Before the court are two pro se motions filed on
April 4 and May 1, 2013, by petitioner Jackie McLeod, an
Alabama inmate, in which he purports to seek relief under
Rule 60(b)(4) and (6) of the Federal Rules of Civil
Doc. Nos. 72 and 74.1
In both motions, he
contends that a 1994 judgment of this case dismissing a
28 U.S.C. § 2254 petition for habeas corpus relief he
filed in 1991 is void.
In the second of these
documents numbers (“Doc. No.”) are to those assigned by
the Clerk of Court in the instant case, Civil Action No.
2:91cv02-MHT. Page references to pleadings are to those
assigned by CM/ECF.
convictions for four counts of cocaine distribution and
the resulting sentence of life imprisonment as a habitual
felony offender entered against him in 1989.
Doc. No. 74
petition in this court challenging the convictions and
sentence imposed by the state trial court in 1989.
He raised a total of 25 claims in the habeas
On December 1, 1992, the magistrate judge
entered a recommendation that McLeod’s habeas petition be
denied, reaching the merits of nine claims and dismissing
the remaining claims on procedural default grounds.
The district court adopted the recommendation of
the magistrate judge and entered judgment against McLeod
on December 18, 1992.
Doc. No. 52.
McLeod appealed, and, on June 17, 1994, the Eleventh
Circuit Court of Appeals affirmed in part but reversed
this court’s holding that most of McLeod’s claims were
procedurally defaulted, and the appellate court remanded
the case to this court for further proceedings.2
v. Harrelson, No. 93-6039, 26 F.3d 1121 (11th Cir. 1994)
Following remand, the magistrate judge, on
October 5, 1994, entered a recommendation that McLeod’s
habeas petition should be dismissed without prejudice to
Doc. No. 67.
This district court
adopted the recommendation of the magistrate judge and
entered a judgment dismissing the habeas petition without
2. This court had concluded the claims, which McLeod
initially raised in several state post-conviction
petitions, were procedurally defaulted because McLeod
failed to appeal from the denial of his first state postconviction petition and his subsequent state postconviction petitions had been dismissed as successive.
The Eleventh Circuit found that, because McLeod’s direct
appeal was pending when his first state post-conviction
was denied, the trial court lacked jurisdiction, under
former Rule 20, Ala.R.Crim.P. Temp., to rule on the first
state post-conviction petition. Consequently, there had
been no actual ruling on the merits of the first state
post-conviction petition, and the subsequent state postconviction petitions were not successive.
prejudice on November 17, 1994.
Doc. No. 71.
did not appeal that judgment.
Although McLeod purports in his instant motions to
challenge “the District Court Magistrate Judge (John L.
Carroll) court order ruling on or about September 20,
without prejudice,” Doc. No. 72 at 1; Doc. No. 74 at 1,
no such order was entered by the magistrate judge or the
district court on that date.
It appears that the correct
date of the ruling of this court under attack by McLeod
is November 17, 1994, the date on which this court
adopted the recommendation of the magistrate judge and
entered an order dismissing McLeod’s habeas petition
without prejudice to allow him to return to state court
to exhaust his unexhausted claims.
As noted, McLeod purports to seek relief under Rule
60(b)(4) and (6) of the Federal Rules of Civil Procedure.
He asserts that this court’s 1994 judgment dismissing
without prejudice the § 2254 habeas petition he filed in
jurisdiction and authority” to enter such a judgment
after the Eleventh Circuit
remanded his petition to this
court for further proceedings in light of its holding
McLeod’s claims were procedurally defaulted.
“Federal Rule of Civil Procedure 60 provides a basis,
but only a limited basis, for a party to seek relief from
a final judgment in a habeas case.”
Williams v. Chatman,
510 F.3d 1290, 1293 (11th Cir. 2007).
Rule 60, like all
Federal Rules of Civil Procedure, applies only to civil
actions and proceedings in the United States District
A party may seek relief from judgment under subpart
(b)(4) of Rule 60 if the judgment was “void,” that is,
provides for relief from judgment for “any other reason
that justifies relief.”
brought under subparts (b)(4) and (b)(6) “must be made
within a reasonable time ... after the entry of the
Here, McLeod attacks a judgment of this court that is
over 18 years old.
He has given no reason for his
Under the circumstances, the court finds
that his motions were not filed within a reasonable time
therefore untimely. Consequently, his motions for relief
under Rule 60(b)(4) and (6) are due to be dismissed on
See, e.g., Soloman v. United States, 300
Fed. App’x 857, 858–59 (11th Cir. 2008) (Rule 60(b) motion
on denial of § 2255 motion denied because petitioner
“failed to file his motion for relief within a reasonable
time, and he did not provide any explanation for the
[nine-year] delay” in filing motion); BUC Int’l Corp. v.
International Yacht Council, Inc., 517 F.3d 1271, 1275
(11th Cir. 2008) (in deciding what is a “reasonable time”
to file a Rule 60(b) motion, the court “must consider the
circumstances of each case to determine ‘whether the
parties have been prejudiced by the delay and whether a
good reason has been presented for failing to take action
supporting his assertion that this court’s 1994 judgment
“Generally, a judgment is void under Rule
jurisdiction of the subject matter, or of the parties, or
if it acted in a manner inconsistent with due process of
Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir.
2001) (citation and quotation marks omitted). McLeod has
not raised any reasonable arguments suggesting that this
court lacked jurisdiction in this case or that it acted
in a manner inconsistent with due process of law.
judgment is not void ... simply because it is or may have
Similarly, a motion under Rule 60(b)(4)
is not a substitute for a timely appeal.
jurisdictional error or on a violation of due process
that deprives a party of notice or the opportunity to be
United Student Aid Funds, Inc. v. Espinosa, 559
U.S. 260, __, 130 S.Ct. 1367, 1377 (2010) (citation and
quotation marks omitted).
McLeod also fails to point out any error in this
As indicated, the Eleventh Circuit
In light of the Eleventh Circuit’s
opinion, this court concluded that his petition contained
claims that were unexhausted in the state courts, and
this court dismissed the petition without prejudice to
allow McLeod to pursue his state-court remedies.
does not show how this ruling was erroneous.3
Any suggestion by McLeod that he was deprived of
reasons set forth, then, this court concludes that McLeod
In one of McLeod’s motions under consideration, Doc.
No. 74, he not only presents claims that challenge this
court’s 1994 judgment with regard to his January 1991
habeas petition, but he also attack his convictions for
four counts of cocaine distribution and the resulting
sentence of life imprisonment entered against him in
Doc. No. 74 at 3-7.
It is well settled, however,
an opportunity to have his claims heard would be
disingenuous. When he returned to state court, he filed
an amended state post-conviction petition raising 12
grounds for relief. Counsel was appointed to represent
him, and an evidentiary hearing was held.
trial court then considered all the issues McLeod had
raised in his January 1991 habeas petition and those in
Subsequently, McLeod filed several more § 2254 habeas
petitions in this court challenging the same convictions
4. McLeod makes no attempt to set forth “any other
reason that justifies relief,” as provided in Rule
60(b)(6). Thus, he also fails to demonstrate a basis for
relief under Rule 60(b)(6).
that Fed.R.Civ.P. 60 does not provide a vehicle for
relief from a judgment in a criminal case.
v. Fair, 326 F.3d 1317 (11th Cir. 2003); United States v.
Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998).
The court’s records reflect that, in September 1995,
McLeod filed a § 2254 habeas petition challenging these
same state-court convictions. See
(M.D. Ala. Oct. 24, 1996).
McLeod v. Sutton,
In that habeas action, this
court determined that his petition was due to be denied
because he had procedurally defaulted on each of his
claims for relief and had failed to show cause and
excusing his procedural default.
McLeod v. Sutton,
Civil Action Nos. 1:95cv1181-WHA (Doc. Nos. 31 and 33).
Where a previous habeas petition has been denied, a
nominal Rule 60(b) motion containing one or more “claims”
attacking his state convictions, his instant pleading,
Doc. No. 74, is due to be treated as a successive § 2254
petition, despite his having designated the motion as one
seeking relief under Rule 60(b)(4).5
See id.. At 531-32.
5. For purposes of the successive-petition rules,
McLeod’s 1991 habeas petition does not “count” as his
initial § 2254 petition because this court dismissed that
petition without prejudice. The habeas petition McLeod
filed in September 1995 is his initial § 2254 petition
for purposes of the successive-petition rules.
addition to his previous § 2254 habeas petitions, McLeod
also attacked his convictions and sentence in a pleading
filed in July 2009 styled as a “2241 Petition for Writ of
Habeas Corpus,” McLeod v. Culliver, Civil Action No.
1:09cv634-ID (Doc. No. 1), and again in a pleading filed
in December 2010, where McLeod purported to seek relief
under Fed.R.Civ.P. 60(b)(6) or, in the alternative, 28
U.S.C. § 2241, McLeod v. Patterson, Civil Action No.
1:10cv1074-ID (Doc. No. 1). As is the case with McLeod’s
instant pleading, this court deemed McLeod’s 2009 and
2010 challenges to be the functional equivalent of 28
U.S.C. § 2254 petitions. See Civ. Action No. 1:09cv634ID (Doc. Nos. 20, 23, and 24); Civ. Action No. 1:10c1074ID (Doc. Nos. 3-5).
application permitted by this section is filed in the
appropriate court of appeals for an order authorizing the
district court to consider the application.”
in the court of appeals for an order authorizing the
application shall be determined by a three-judge panel of
the court of appeals” and may be granted “only if [the
assigned panel of judges] determines that the application
satisfies the requirements of [28 U.S.C. § 2244(b)(2)].”
28 U.S.C. § 2244(b)(3)(B) and (C).
McLeod has not received an order from a three-judge
application for habeas corpus relief under 28 U.S.C.
This court therefore lacks jurisdiction to grant
him relief to the extent he presents claims attacking his
Pardons and Paroles, 273 F.3d 932, 933 (11th Cir. 2001);
Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997).
An appropriate order denying relief will be entered.
DONE, this the 28th day of May, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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