McCormick v. Gordy et al (INMATE 3)
Filing
106
OPINION AND ORDER: Accordingly, and as the contention therein lacks merit, it is ORDERED that Samuel Allan McCormick's motion for relief from final judgment under Fed. R. Civ. P. 60(b)(4) (Doc. No. 90 ) is denied. Signed by Honorable Judge Myron H. Thompson on 3/25/2019. (kh, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
SAMUEL ALLAN McCORMICK,
)
)
Petitioner,
)
)
v.
)
)
CHRISTOPHER GORDY, Warden, )
Limestone Correctional
)
Facility, et al.,
)
)
Respondents.
)
CIVIL ACTION NO.
2:16cv786-MHT
(WO)
OPINION AND ORDER
Petitioner Samuel Allan McCormick, a state inmate,
is before the court on his pro se motion, filed under
Federal Rule of Civil Procedure 60(b)(4), for relief
from this court's November 2016 final judgment denying
his
28
U.S.C.
§ 2254
evidentiary hearing.
habeas
petition
without
an
He argues that the United States
District Court for the Northern District of Alabama,
where
he
originally
determined
hearing
petition
on
to
that
his
this
he
filed
was
petition
court,
his
entitled
when
in
the
habeas
to
it
an
petition,
evidentiary
transferred
Middle
District
the
of
Alabama,
for
For
reasons
the
disposition
that
under
follow,
28
U.S.C.
this
court
§ 2241(d).
will
deny
McCormick’s Rule 60(b)(4) motion.
I.
BACKGROUND
McCormick filed his habeas petition in the United
States
District
Alabama
on
Court
for
20,
2016.
May
the
Northern
In
his
District
of
petition,
he
challenged his June 2012 state-court convictions and
sentences for sexual abuse of a child under the age of
12
years
purposes.
and
enticement
After
the
of
a
child
respondents
for
filed
an
immoral
answer
asserting among other defenses the one-year limitation
period in the Antiterrorism and Effective Death Penalty
Act (AEDPA), 28 U.S.C. § 2244(d), the Northern District
court found the case ripe for summary disposition and
ordered him to show why his habeas petition should not
be summarily dismissed for the reasons argued by the
2
respondents.
McCormick then filed pleadings attempting
to avoid dismissal of his petition.
On September 13, 2016, the Northern District court
entered
an
petition
to
order
the
transferring
Middle
District
McCormick’s
of
Alabama,
habeas
finding
that, although he was incarcerated within the Northern
District, his convictions arose from a county within
the Middle District.
The transfer order stated:
"In this habeas action pursuant to 28 U.S.C.
§ 2254,
the
petitioner
challenges
his
convictions [for] sexual abuse of a child under
the age of 12 years and enticing a child in the
Circuit Court of Covington County, Alabama.
Although this court has jurisdiction over the
petition due to petitioner’s incarceration at
the Limestone Correctional Facility, 28 U.S.C.
§ 2241(d) provides that where two federal
districts within a state have jurisdiction by
virtue of, respectively, the place of the
petitioner’s confinement and the place of his
conviction, the court where the petition was
filed may ‘in the exercise of its discretion
and in furtherance of justice ... transfer the
application to the other district court for
hearing and determination.’
Covington County
is located in the Northern Division of the
Middle
District
of
Alabama.
28
U.S.C.
§ 81(b)(1). Because the records and witnesses
relating to the conviction are likely located
in that district, it is hereby ORDERED that
3
this action be and hereby is TRANSFERRED to the
United States District Court for the Middle
District of Alabama.”
Transfer Order (doc. no. 24) at 1-2.
McCormick’s case was docketed in this court, and,
on November 17, 2016, after reviewing the pleadings,
the
United
States
recommendation
without
untimely
an
that
Magistrate
his
habeas
evidentiary
filed
hearing
outside
of
one-year limitation period.
28
Judge
entered
petition
and
be
denied
dismissed
U.S.C.
a
as
§ 2244(d)’s
On November 30, 2016, the
recommendation was adopted by this court, and a final
judgment
was
entered
for
the
respondents.
McCormick filed his Fed. R. Civ. P. 60(b)(4) motion
on March 26, 2018, arguing that this court’s November
2016 judgment denying his habeas petition without an
evidentiary
hearing
is
void
because,
he
says,
the
Northern District court, in transferring the petition
to this Middle District court, decided he was entitled
to an evidentiary hearing on his claims.
4
According to
McCormick,
the
Northern
District
court
“conclusively
determined that McCormick had overcome ALL statutory
and
procedural
determined
hearing
bars
McCormick
and
for
was
summary
entitled
TRANSFERRED
disposition
to
an
McCormick’s
and
evidentiary
petition
in
furtherance of justice for hearing and determination
...
to
be
conducted
by
the
United
States
Middle
District Court of Alabama.”
Rule 60(b) Motion (doc.
no.
maintains
90)
at
3.
McCormick
this
court’s
judgment dismissing his habeas petition as time-barred
without holding an evidentiary hearing “intentionally
contradict[ed]
[Northern
and is therefore void.
II.
District
court]’s
decision”
Id. at 4.
DISCUSSION
Rule 60(b) of the Federal Rules of Civil Procedure
allows a party to move for relief from a final judgment
in a civil case on the following grounds:
“(1)
mistake,
inadvertence,
surprise,
or
excusable
neglect;
(2)
newly
discovered
5
evidence that, with reasonable diligence, could
not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud (whether
previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing
party; (4) the judgment is void; (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.”
Fed. R. Civ. P. 60(b).
McCormick seeks relief under
subpart (4), arguing that this court’s November 2016
judgment denying his habeas petition is void.
If a court “act[s] without authority, its judgments
and
orders
are
regarded
as
nullities.
They
are
not
voidable, but simply void; and form no bar to a remedy
sought
in
reversal.”
329 (1828).
opposition
to
them,
even
prior
to
a
Elliott v. Peirsol’s Lessee, 26 U.S. 328,
There is no void judgment in McCormick’s
case.
McCormick’s
allegations
notwithstanding,
the
Northern District court’s order transferring his habeas
petition to this Middle District court did not, in any
6
manner, constitute a determination that he had overcome
applicable
statutory
and
procedural
bars
warranting
summary disposition, much less a determination that the
claims in his petition were required to be considered
on their merits after an evidentiary hearing.
A habeas
petition for relief under § 2254 may be filed in either
“the
district
court
for
the
district
wherein
such
person is in custody or in the district court for the
district within which the State court was held which
convicted
and
sentenced
him.”
28
U.S.C.
§ 2241(d).
"The district court for the district wherein such an
application is filed in the exercise of its discretion
and
in
furtherance
application,"
id.,
of
to
justice
“the
may
district
transfer
court
for
the
the
district within which the State court was held which
convicted and sentenced [the petitioner].”
Although
his
arguments
are
mostly
Id.
conclusory,
McCormick appears to seize upon the transfer order’s
use
of
the
words
“for
hearing
7
and
determination,”
language that appears in § 2241(d), to argue that the
Northern District court determined he was entitled to
an evidentiary hearing in this Middle District court on
his
habeas
claims.
construction
of
this
However,
such
language
would
an
unreasonable
mean
that
any
habeas action transferred under § 2241(d) necessarily
includes an implicit finding by the transferring court
that
the
hearing.
petitioner
is
entitled
to
an
evidentiary
Under McCormick’s argument, it would further
mean that any habeas action transferred under § 2241(d)
includes an implicit finding by the transferring court
that
the
statutory
summary
petitioner
and
has
overcome
procedural
disposition
bars
by
that
the
all
applicable
might
warrant
transferee
court.
McCormick’s argument is meritless.
The Northern District court merely transferred his
petition
to
proceedings.
this
Middle
District
court
for
further
There was no finding that an evidentiary
hearing was necessary or that AEDPA’s limitation period
8
does
not
apply
to
render
McCormick’s
petition
time-barred.
In making his argument, McCormick quotes from a
magistrate judge's recommendation in the United States
District
Court
for
the
Northern
District
of
Texas,
stating that, “‘The legislative history of [§ 2241(d)]
makes clear that a district court should transfer a
petition
to
the
district
in
which
petitioner
was
convicted and sentenced if the transferring court is of
the view that an evidentiary hearing will be necessary
before
final
determination
can
be
had.’”
Davis
v.
Davis, 2017 WL 4772713, at *1 (N.D. Tex. 2017) (Horan,
M.J.) (quoting Laue v. Nelson, 279 F. Supp. 265, 266
(N.D. Cal. 1968) (Weigel, J.)), recommendation adopted
by Davis v. Davis, 2017 WL 4736739 (N.D. Tex. 2017)
(Fish, J.).
court
This language does not mean that a federal
transferring
necessarily
entitled
to
made
an
a
an
action
finding
evidentiary
9
under
that
the
hearing
§ 2241(d)
petitioner
on
his
has
is
claims.
Rather,
it
takes
into
account
that,
when
deciding
whether to exercise its discretion to transfer a habeas
petition under § 2241(d) to the federal district within
which the State court that convicted and sentenced the
petitioner is located, a federal court should consider,
among other factors, whether it appears a hearing might
be necessary to resolve the claims in the petition,
since
the
records
and
witnesses
relating
to
the
conviction are likely to be located in the district of
conviction.
or
imply,
Transfer under § 2241(d) does not require,
a
finding
that
an
evidentiary
hearing
is
necessary, and it most certainly does not constitute a
ruling as to any statutory and procedural bars that
might
ultimately
warrant
summary
disposition
of
the
petition.
Relief under Rule 60(b) is a remedy available only
in
extraordinary
relief
under
the
circumstances,
rule
bears
and
a
a
high
party
seeking
burden.
See
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005); Saunders
10
v. United States, 380 F. App’x 959, 964 (11th Cir.
2010); Santa v. United States, 492 F. App’x 949, 951
(11th
Cir.
Northern
2012).
District
McCormick’s
court
argument
determined
he
that
had
the
overcome
applicable statutory and procedural bars and that he
was entitled to an evidentiary hearing on his petition
is baseless.
His case was properly transferred to this
court
§ 2241(d),
under
judgment
denying
his
and
this
habeas
court’s
petition
subsequent
without
an
evidentiary hearing is not void.
***
Accordingly, and as the contention therein lacks
merit,
it
is
ORDERED
that
Samuel
Allan
McCormick’s
motion for relief from final judgment under Fed. R.
Civ. P. 60(b)(4) (Doc. No. 90) is denied.
DONE, this the 25th day of March, 2019.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
11
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