Fisher v. Mitchum

Filing 60

ORDER denying 59 Motion to Set Aside Judgment. Signed by Judge Kristi K. DuBose on 1/14/2013. copy mailed to petitioner. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MANSON FISHER, JR.,
Petitioner,

)
)
)
)
)
)
)

v.
BILLY MITCHUM,
Defendant.

Civil Action No. 98-00871-KD-M

ORDER
This matter is before the Court on Petitioner’s pro se “Motion for Relief of Judgment
Pursuant to Rule 60(b)(6) F.R.Civ.P.” (Doc. 59).
I.

Background
Pro se Petitioner Manson Fisher, Jr. (“Fisher”)1 has been active in this Court since 1998

(Doc. 1) when he filed his first habeas petition, which was denied as time-barred in April 2000.
(Docs. 26, 27).

More than five years later in September 2005, Fisher filed a Rule 60(b)(6)

“motion to vacate judgment” which was denied,2 along with a notice of appeal and motion for
certificate of appealability which was denied.

(Docs. 28, 29, 32-34).

In November 2005,

Fisher’s appeal was dismissed by the Eleventh Circuit for want of prosecution (for failing to pay
the filing fee).

(Doc. 35).

Almost two years later in June 2007, Fisher filed a second Rule

60(b)(6) “motion to vacate judgment” which was denied3 (Docs. 36-37), a motion for certificate

1

On February 2, 1988, Fisher was convicted of capital murder in the Circuit Court of
Washington County and received a sentence of life without parole in the state penitentiary. Fisher v.
State, 587 So.2d 1027 (Ala. Crim App.), writ den., 587 So.2d 1039 (Ala. 1991). (Doc. 22 at 2).
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The Court endorsed as denied Fisher’s motion without explanation.

(Doc. 29).

The Court endorsed his motion denied, stating that the relief sought was “neither authorized
under F.R.Civ.P. 60(b) nor timely in view of the [35] dismissal of petitioner's appeal of the subject
Judgment [by the Eleventh Circuit] on November 7, 2005, for want of prosecution.” (Doc. 37).

of appealability which was denied (Docs. 39, 40), and a notice of appeal (Doc. 38).

See also

Doc. 45. In June 2008, Fisher filed a third Rule 60(b)(6) “motion to vacate alter or amend
judgment”4 (Doc. 46), which was denied (Doc. 47),5 a notice of appeal (Doc. 48), and a motion
for certificate of appealability (Doc. 49) which was denied in September 2008 (Docs. 50, 52).6
On February 19, 2010, this case was transferred to the undersigned.

(Doc. 53). On

this date, Fisher filed a fourth Rule 60(b)(6) motion to vacate and in forma pauperis motion.
(Docs. 54, 55).

In so doing, Fisher again referenced his diabetes and eye problems as

extraordinary circumstances preventing him from being able to timely file his appeal “because I
could’nt [sic] see[:]” “I was unable physically and emotionally to effectuate my appeal ti [sic]
this honorable court due to extraordinary circumstances beyond my control.” (Doc. 54 at 5).
In support, Fisher attached the same medical records submitted with his prior Rule 60(b)(6)
motion; namely, letters from his treating physicians from February 4, 1998 through May 9, 2000.
(Id. at 6-15).

On July 13, 2010, the Court issued an order denying Fisher’s motion.

(Doc. 58).

In so doing, the Court found as follows:
Manson Fisher, Jr., an Alabama state prisoner proceeding pro se, seeks to vacate
the Court’s April 2000 Order and Judgment which concluded that his habeas petition was
time-barred (Docs. 26, 27). The record reveals that this is Fisher’s fourth motion to
vacate that order and judgment. As grounds, Fisher contends that his physical and
4

Citing extraordinary circumstances and referencing problems with diabetes and his eyes,
Fisher stated that his failure to appeal was “through no fault of his own[]” adding that he was “not
physically or emotionally able to effectuate appeal.” (Doc. 46 at 2).
5

The Court endorsed his motion denied, stating that the “relief petitioner again seeks is neither
authorized by Fed. R. Civ. P. 60(b) nor timely filed in view of the [35] dismissal of petitioner's appeal of
the subject Judgment on 11/07/05 for want of prosecution and the [45] denial of petitioner's motion for
COA and IFP by the Eleventh Circuit Court of Appeals on 09/06/07.” (Doc. 47).
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The Eleventh Circuit’s Order stated that: “Appellant's motion for a certificate of appealability
is DENIED because appellant has failed to make the requisite showing. 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 1600-01, 146 L.Ed.2d 542 (2000).” (Doc. 52 at 3).

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emotional condition constitute the extraordinary circumstances for his untimely habeas
petition such that the April 2000 Order finding his habeas petition as time-barred should
be vacated. Essentially then, Fisher relies upon Rule 60(b)(6) to assert that he was so
incapacitated by his illnesses (because he could not see due to his diabetic retinopathy)
that the ability to file a timely habeas petition was beyond his control.
While Fisher filed four motions to vacate since September 2005, he did not raise
the issue of his diabetes or any illness as the basis for his untimely filing .... until the
filing of his third Rule 60(b)(6) motion to vacate in June 2008. In July 2008, Judge Hand
concluded in an endorsed order that his third motion was due to be denied because the
relief he sought was neither authorized by Rule 60(b) nor timely in light of the Eleventh
Circuit’s dismissal of his appeal for want of prosecution on November 7, 2005 and the
denial of his motion for certificate of appealability and in forma pauperis motion by the
Eleventh Circuit on September 6, 2007. (Doc. 47).
Over 1½ years later, Fisher filed his fourth -- now pending -- Rule 60(b)(6)
motion to vacate, stating that “his inability to see is an exceptional circumstances that
warrants this honorable court exercising its discretionary power to vacate its judgment.”
(Doc. 54 at 2). Specifically, in his Affidavit (attached in support), he asserts that he is a
diabetic Awho suffers from diabetic retinopathy .... during the period of time that my
notice of appeal became due I was unable to file it because I could’nt [sic] see ... I have
had to under-go extensive and aggressive surgery on both eyes just to keep from going
totally blind, including retina reattachment surgery on both eyes[] [and] I was unable to
physically and emotionally to effectuate my appeal ... due to extraordinary circumstances
beyond my control.” (Doc. 54 at 5 (2/16/10 Affidavit)).
***
First and foremost, Fisher’s 60(b)(6) motion is due to be denied for the basic
reason that it is an attempt to litigate an issue already decided by Judge Hand in July
2008. Moreover, Fisher has failed to show any extraordinary circumstances that would
warrant reconsider of the issue. As to the timeliness of his filing, Fisher has failed to
provide justification for waiting over eight years to first assert diabetic retinopathy, a
condition that was diagnosed and treated between 1998-2000, as a basis for the relief he
seeks. Accordingly the motion is DENIED.
II.

Discussion
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became

effective on April 24, 1996, amended 28 U.S.C. § 2244 to provide a limitations period for filing
federal habeas corpus petitions. Under § 2244(d)(1)(A) as amended, a petitioner has one (1) year
from the date the appeal is final to file a federal habeas corpus. The time period specified in 28
U.S.C. § 2244 is a statute of limitations, not a jurisdictional bar, and therefore permits equitable
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tolling. Holland v. Florida, 130 S.Ct. 2549 (2010); Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.
2000).

The AEDPA’s limitations period may be equitably tolled if the “movant untimely files

because of extraordinary circumstances that are both beyond his control and unavoidable even
with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).

“[A] petitioner

is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented timely filing.”
Holland, 130 S.Ct at 2562-2563.

In other words, if circumstances beyond the prisoner’s control

made it impossible to file on time.

The burden is on the petitioner (prisoner) to establish such

extraordinary circumstances showing entitlement to such relief.
Nevertheless, Fisher may not use a Rule 60(b) motion as an attempt to circumvent the
statutory restrictions on filing a second or successive § 2255 motion. 28 U.S.C. § 2255(h); 28
U.S.C. § 2244(b)(3)(A). Therefore, the Court must first determine whether Fisher’s motion
attempts to circumvent the statute and is an impermissible successive § 2255 motion. The
relevant portion of Fed.R.Civ.P. 60(b) provides as follows:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. 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: . . . (6) any
other reason that justifies relief . . . .
FED.R.CIV.P. 60(b)(6).

The Eleventh Circuit has explained that:

Rule 60(b) does not provide for relief from judgment in a criminal case, United
States v. Fair, 326 F.3d 1317, 1318 (11th Cir.2003) (per curiam), but may provide
relief in limited circumstances from the denial of a § 2255 motion, see Gonzalez
v. Crosby, 545 U.S. 524, 534, 125 S.Ct. 2641, 2649, 162 L.Ed.2d 480 (2005). We
construe a Rule 60(b) motion as a post-conviction motion to vacate a sentence
under § 2255 where it “seeks to add a new ground for relief,” or “attacks the
federal court's previous resolution of a claim on the merits.” Gonzalez, 545 U.S.
at 532, 125 S.Ct. at 2648 (emphasis omitted). In order to file a second or
successive § 2255 motion, a federal prisoner must obtain our permission. See 28
U.S.C. § 2255(h), cross-referencing 28 U.S.C. § 2244(b). A petitioner who files a
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Rule 60(b) motion may not circumvent the statutory restrictions on second or
successive applications, unless the Rule 60(b) motion attacks a defect in the
integrity of the federal habeas proceedings, such as fraud upon the federal court
that led to the denial of the original habeas petition. Gonzalez, 545 U.S. at 532,
125 S.Ct. at 2648.
United States v. Winston, 346 Fed. Appx. 520, 522 (11th Cir. 2009).
In habeas proceedings, a Rule 60(b) motion which challenges a district court's
determination of whether a habeas petition was time-barred is not a “second or successive”
habeas petition. Gonzalez v. Crosby, 545 U.S. 524 (2005). Under Rule 60(b), a court may relieve
a party from a final judgment or order for, inter alia, “mistake, inadvertence,” “newly discovered
evidence which by due diligence could not have been discovered in time,” “fraud...
misrepresentation, or other misconduct of an adverse party,” or “any other reason justifying
relief from the operation of the judgment.” Id. The Rule also specifies that the motion shall be
made within a reasonable time, and for reasons (1) [mistake], (2) [newly discovered evidence],
and (3) [fraud] the motion should be made not more than one year after the judgment, order, or
proceeding was entered or taken. Id. See also Olmstead v. Humana, Inc., 154 Fed. Appx. 800
(11th Cir. 2005).
Fisher is proceeding under the catch-all subsection that provides “any other reason that
justifies relief”, thus he must show “extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S.
524 (2005). Moreover, the motion must be filed “within a reasonable time.” In determining
what is a “reasonable time,” courts may consider such things as the interest of finality, the reason
for the delay, and the ability of the party to learn earlier of the grounds relied on in the motion.
See, e.g., U.S. v. Patton, 2006 WL 3544814, *1 (N.D. Ga. Dec. 8, 2006).
Presently, Fisher seeks to have the Court set aside its prior judgment (the ruling that his
habeas corpus petition was time barred) “in order to give” him “one full round of habeas corpus
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review in line with Congressional intent[,]” claiming that he “was effectively shut out of federal
court without any adjudication on the merits[.]”

(Doc. 59 at 1, 3).

Fisher’s present 60(b)(6)

motion is due to be denied for the basic reason that it is -- yet again – a baseless attempt to
litigate an issue already decided by Judge Hand in July 2008.

Moreover, Fisher has failed to

show any extraordinary circumstances that would warrant reconsideration.

Additionally, Fisher

has failed to provide support for the relief requested; rather, his motion appears to simply be an
meritless attempt – 2½ years later -- to obtain a different result from that of the July 2010 order
(i.e., to have the Court suddenly change its ruling).

Further, the Court has already repeatedly

addressed (and denied) Fisher’s multiple attempts to vacate its prior judgment, and most recently
denied such a request in July 2010. (Docs. 29, 31, 34, 37, 40, 43, 47, 50, 57, 58). In sum, Fisher’s
present motion to set aside the prior judgment again lacks merit.

Accordingly, it is ORDERED

that Fisher’s Rule 60(b)(6) motion (Doc. 59) is DENIED.
DONE and ORDERED this the 14th day of January 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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