Packer v. Jones

Filing 47

ORDER denying 45 Motion to Take Judicial Notice; denying 46 Motion to Set Aside Judgment; denying 46 Motion to Reopen Case. Signed by Judge Callie V. S. Granade on 11/13/2013. Copy Mailed. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DARRYL A. PACKER,
Plaintiff,
vs.
WARDEN KENNETH JONES
Respondent.

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Civil Action No. 06-0665-CG-B

ORDER
This matter is before the Court on Plaintiff Darryl A. Packer’s
(“Packer”) “Motion to Take Judicial Notice” (Doc. 45) and “Motion to Set
Aside Judgment and/or Motion to Reopen Case” (Doc. 46). Pursuant to Rule
60(b) and (d) of the Federal Rules of Civil Procedure,1 Packer moves that the

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Federal Rule of Civil Procedure 60(b) and (d) provides:
(b) 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:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered 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.
…
(d) This rule does not limit a court’s power to:
(1) entertain an independent action to relieve a party from a
judgment, order or proceeding;

court vacate its order dated August 25, 2011 (Doc. 33) in which the court
adopted the report and recommendation of the Magistrate Judge (Doc. 26)
and denied Packer’s habeas petition (Doc. 1) filed pursuant to 28 U.S.C. §
2254. Upon consideration, the court finds that Packer’s motions are due to be
denied.
On March 5, 2004, a trial jury in the Circuit Court of Mobile, Alabama,
found Packer guilty of rape and burglary. (Doc. 11; Doc. 20, Exhibit F at 48).
The trial court sentenced Packer to two consecutive terms of ninety-nine (99)
years imprisonment. Id. Following the denial of Packer’s claims on direct
appeal, he filed a federal habeas petition in this court. (Doc. 1). This court
adopted the report and recommendation of the Magistrate Judge and denied
Packer federal habeas relief. (Docs. 26, 33). Packer subsequently filed a notice
of appeal to the Eleventh Circuit Court of Appeals, and sought a Certificate of
Appealability from the District Court. (Docs. 35, 36, 38). This court denied
Packer’s motion for a Certificate of Appealability and denied him leave to file
his appeal in forma pauperis. (Doc. 37). On March 7, 2012, the Eleventh
Circuit Court of Appeals denied Packer’s motion for a Certificate of
Appealability as well. (Doc. 43). The Supreme Court denied Packer’s petition
for writ of certiorari on December 14, 2012. (Doc. 44). On August 8, 2013,
Packer filed the instant motions seeking relief from the August, 25, 2011,
(2) grant relief under 28 U.S.C. § 1655 to a defendant who was
not personally notified of the action; or
(3) set aside a judgment or fraud on the court.
Fed.R.Civ.P 60(b) and (d).

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judgment denying his federal habeas petition (Doc. 34).

DISCUSSION
“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) (per curiam). The
Eleventh Circuit has set forth this limited basis follows:
In Gonzalez v. Crosby, the Supreme Court provided guidance as
to how prisoner claims under Rule 60 should be construed. 545
U.S. 524, 531-32, 125 S.Ct. 2641, 2647-48, 162 L.Ed.2d 480
(2005). If the motion seeks to add a new ground for relief from
the underlying judgment of conviction, or otherwise attacks the
district court's resolution of any original § 2255 claims on the
merits, then the court should construe the Rule 60 action as a
second or successive § 2255 motion and dismiss it accordingly.
Id. By contrast, “when a Rule 60(b) motion attacks, not the
substance of the federal court's resolution of a claim on the
merits, but some defect in the integrity of the federal habeas
proceedings,” courts should not treat the Rule 60 action as a
successive § 2255 motion. Id. at 532-33; 125 S.Ct. at 2648. Such
actions can “be ruled upon by the District Court without
precertification.” Id. at 538, 125 S.Ct. at 2651. The Gonzalez
Court specifically identified fraud on the federal habeas court as
an example of one such permissible Rule 60 claim. Id. at 532 n.
5, 125 S.Ct. at 2648.
When a Rule 60 motion is construed as an independent action
alleging fraud on the court, the movant must establish by clear
and convincing evidence, among other things, “fraud, accident,
or mistake which prevented the defendant in the judgment from
obtaining the benefit of his defense.” Travelers Indem. Co. v.
Gore, 761 F.2d 1549, 1551 (11th Cir. 1985). “[O]nly the most
egregious misconduct, such as bribery of a judge or members of a
jury, or the fabrication of evidence by a party in which an
attorney is implicated, will constitute a fraud on the court.”
Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978).
An action for fraud on the court should be available only to

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“prevent a grave miscarriage of justice.” United States v.
Beggerly, 524 U.S. 38, 47, 118 S.Ct. 1862, 1868, 141 L.Ed.2d 32
(1998). Further, the movant must show an “unconscionable plan
or scheme” to improperly influence the court's decision. Rozier,
573 F.2d at 1338. “Conclusory averments of the existence of
fraud made on information and belief and unaccompanied by a
statement of clear and convincing probative facts which support
such belief do not serve to raise the issue of the existence of
fraud.” Booker v. Dugger, 825 F.2d 281, 284-85 (11th Cir. 1987)
(quotation omitted).
Galatolo v. U.S., 394 Fed.Appx. 670, 672 (11th Cir. 2010)(footnote omitted).
Thus, the court must analyze whether each of Packer’s claims is, in effect, a
habeas claim or an allegation regarding a defect in the integrity of the federal
habeas proceedings to ensure subject-matter jurisdiction exists.
Packer claims six grounds of relief in support of his motion. With the
exception of Packer’s first argument, this court previously considered and
rejected these claims.2 Packer cannot invoke the language of Rule 60 while
actually seeking to attack his conviction and sentence. To the extent the court
has already addressed these arguments, Packer’s Rule 60 motion is
considered a successive § 2254 motion. The law requires that such claims be
dismissed. 28 U.S.C. § 2244(b)(1)3.
The only possible ground for relief under Rule 60 is Packer’s contention
The order adopting the Magistrate Judge’s report and recommendation stated that
it considered “all portions of this file deemed relevant to the issues raised.” (Doc. 33).
These files included Packer’s original habeas petition and objection to the
Magistrate Judge’s report and recommendation in which, although not verbatim, the
substance of these five arguments were raised. (Doc. 31).
2

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28 U.S.C. §2244(b)(1) provides: “A claim presented in a second or successive
habeas corpus application under section 2254 that was presented in a prior
application shall be dismissed.”

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that the undersigned failed to recuse herself sua sponte from presiding over
his federal habeas petition. Specifically, Packer contends that recusal was
mandatory because of and alleged familial relation between the undersigned
and Lars Granade, who was an attorney for the state in the underlying case,
created the appearance of impropriety.
Under 28 U.S.C. § 455(a), “any justice, judge or magistrate [judge] of
the United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” This includes when the judge
is related to a person “acting as a lawyer in the proceeding” within the third
degree. 28 U.S.C. § 455(b)(5). The court first notes that Packer provides no
evidence to support the conclusion that Lars Granade and the undersigned
are related by blood or marriage other than the fact of a last name in
common. Even assuming this to be true4, however, the undersigned’s failure
to recuse herself does not warrant relief under Rule 60. There is nothing in
the record that indicates Lars Granade played a substantive role in any
aspect of the underlying case.5 Lars Granade is merely listed as one of the
attorneys for the state who was present during particular court proceedings.
See Doc. 20, Exhibits 1-9. Packer neither elaborates, beyond his conclusory
allegations, how the undersigned’s failure to recuse herself indicates a need

Parenthetically, the undersigned has no relation, by blood, marriage or otherwise,
with Lars Granade.
5 Lars Granade did not file any motions for the state in the case. See Doc. 20,
Exhibits 1-9, 11. Nor did Lars Granade examine any witness or make any
arguments during Packer’s trial. Id. Rather, the record shows that Ashley Rich was
the main prosecutor who handled the case. Id.
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to correct a clear error or to prevent a grave miscarriage of justice. Thus,
Packer is not entitled to any relief under Rule 60.
Packer’s Motion to take Judicial Notice requested that the court
judicially notice a Supreme Court holding in connection with consideration of
his Rule 60 motion. Because the court has found that Packer is not entitled
to any relief under Rule 60, and also because a Supreme Court opinion is not
a proper “fact” for judicial notice under Federal Rule of Evidence 201(b), that
motion is denied.
CONCLUSION
Based on the foregoing, Packer’s motions to take judicial notice and to
set aside and/or reopen the case (Docs. 45 & 46) are DENIED.
DONE and ORDERED this 13th day of November, 2013 .
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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