Kennedy v. Mobile, Alabama District Attorney's Office et al
ORDER denying 12 Motion Pursuant to Rule 60(b). Signed by Chief Judge William H. Steele on 10/6/2014. Copy mailed to Petitioner. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
RICHARD DARON KENNEDY,
MOBILE, ALABAMA DISTRICT
ATTORNEY’S OFFICE, et al.,
CIVIL ACTION 14-0195-WS-B
This long-closed federal habeas corpus matter comes before the Court on petitioner
Richard Daron Kennedy’s Motion Pursuant to Rule 60(b) (doc. 12).
On May 13, 2014, the Magistrate Judge entered a Report and Recommendation (doc. 9)
setting forth in clear and unambiguous terms why Kennedy’s petition seeking habeas relief under
28 U.S.C. § 2241 was barred as a successive habeas petition for which he had not obtained prior
leave from the Eleventh Circuit Court of Appeals. In particular, the Report and
Recommendation documents Kennedy’s § 2254 petition filed in 2007 seeking collateral relief
from a 1998 state-court conviction of murder and child abuse, explains that this petition was
dismissed as time-barred and that Kennedy’s appeal of such ruling was unsuccessful, and
indicates that Kennedy has filed multiple subsequent actions in this District Court, all seeking
collateral relief from the same conviction. The Report and Recommendation also shows that the
instant § 2241 petition relates to the same conviction and is properly rejected as an unauthorized
successive petition that this District Court lacks jurisdiction to hear. The undersigned adopted
the Report and Recommendation via Order and Judgment dated May 22, 2014. (See docs. 11 &
12.) Kennedy did not appeal.
Now, four months after the dismissal, Kennedy files a Rule 60(b) Motion seeking the
reopener of his § 2241 petition. After careful review of that Motion, the Court concludes that
Kennedy’s Rule 60(b) Motion is improper. “[T]he well-recognized rule … precludes the use of a
Rule 60(b) motion as a substitute for a proper and timely appeal.” Cavaliere v. Allstate Ins. Co.,
996 F.2d 1111, 1115 (11th Cir. 1993) (citation omitted); see also American Bankers Insurance
Co. v. Northwestern National Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999) (“Rule 60(b) may
not be used to challenge mistakes of law which could have been raised on direct appeal.”). That
is precisely what Kennedy is doing. Moreover, the only grounds for granting a motion to
reconsider “are newly-discovered evidence or manifest errors of law or fact.” United States v.
Marion, 562 F.3d 1330, 1335 (11th Cir. 2009) (citation and internal marks omitted). Kennedy’s
Motion identifies neither. Even if Kennedy’s Rule 60(b) Motion were procedurally proper, it
would still be meritless. Nothing in that Motion undermines this Court’s previous conclusion
that Kennedy’s § 2241 petition is barred for lack of jurisdiction as a successive petition which he
did not obtain prior authorization from the Eleventh Circuit to file in this District Court.
For all of the foregoing reasons, petitioner’s Motion Pursuant to Rule 60(b) (doc. 12) is
DONE and ORDERED this 6th day of October, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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