Mathis v. Cauthron

Filing 3

REPORT AND RECOMMENDATIONS re 1 MOTION to Vacate filed by Herbert Mathis. Objections to R&R due by 11/2/2009. Signed by Honorable James R. Marschewski on October 15, 2009. (Attachments: # 1 Exhibit 1 Writ of Habeas Corpus, # 2 Exhibit 2 Order dated 1-6-77, # 3 Exhibit 3 Motion to Dismiss filed 1-13-77, # 4 Exhibit 4 Order dated 1-13-77)(lw)

IN THE TINITED STATES DISI.RICT COURT WE S T E RNDISTRICTOF ARKANSAS FORT'SMI'TH D]VISION IIIIRI]l-,Rl'MAl'AlS a,/k/a MichaelHowartlHunter

PETITIONER

N o . 2:77-ov-02004
tslLL KAI'HRYN, Sherill' RESPONDENT REPORT AND RECOMMENDAI'ION

tscforc undersigned thepetitioner's thc is MotionunderRule60(b)(6)to setasidet}e dismissaof his Habeas l Petitionwhichwasentered January 1977. Corpr.rs on 6 I . Blckground It appears the courtreceived lcttetftom thePetitioner that a dated January 1977stating 2, thathe hadbeendenied constitutional his rights.(SeeExhibit 1) TheDistrict Judge the1ime, at PaulX, Williarrrs, pctitionandotderetl Clerk to file it without treatod letterasa habeas the the theprepayment afee. (SeeExhibit 2) On January of 11,1977thePetitioner wroteanothcr lcttcr to theoourtandstated that he would bc out ofthe Sehastian CountyDetention Center January on 14, 1977 thathe wantedto dismiss habeas and his action.(SecExhihit3) Thecourtentered an orderon January 13,1977dismissing Petitioner's thc (SeeExhibit 4) claim with prejudice. Thc Pctitioner rrowbringsthis rnotionunderRule60 contending he believed the that that pctitionandthe Petitioner courthadseta hearing the habeas on oontends "theday beforcthc that heuing thepetitioner wasreleased from the countyjail andtold hy Sheriffdeputies hc hadto that immcdiately leavethe State Arkansans five years if hc did not, Shetiffwouldarrest of fbr and

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Pdsonliarm".(Doc. I, p.2) Thc couft ordered original the him anddtive him directto Cunrmins date filc andreceived filc on October14,2009. It is clcarfrom the courtfile thatno hearing the although the on wasneverauthrrrizcd the Resporitlett as waseversctzurd, notedbefbrc,scrvice CountyCourthouse. corutdid send oopyof'thc letterto Bill KATHR\'II at the Sebastian a I I . Discussion Rrrle Rulcsof Civil Prooeduteo 60(b)(6), states oh motionand.justtenns, that TheFederal for orderor proceeding five enumerated the oourtmayrclievea party...lloma finaljudgment, here,andanyotherreason thatjuslifiesrclicf. Rule60(c) reasons, noneof whicharc applicable time. that requires a motionundetRule60(b)be madewithin a rcasonable "[What constitutes

'reasonabltimc' underRule 60(hxd)dcpends particular e v. factsofcase." UniledStates Irive on 960 v. Thttusand Dollarsin [].5. (Itrrency,184 F.3d95t1. (8th Cir.1999)(.citingWatkins Lentil' | 6e F.3ds40,544(8thcir. 1999)). See 32 ThePetitioncr's vear delayin filing his motionis unreasonable. Kel/oggv. ,S?acfr, was"a period timc which of that delay 2 6 9 F . 3 i 100,104(2d Cir.200l)(holding a 26-month cert. mitigatingcircumstances"), denied, 535 unreflsonable delayabsent constitutea patently s 2 lltatkins I,entil,169It.3d540at 544 v. tJ.S. 932,122S,Ct.I 306,152L.Ed.2d | 6 (2002); a but trepidation" delaywasreasouable, (exprcssin"considerablc g aboutwhcther 17-month Pub. findingthatthe issuewasnot properly befbrethecourt); NucorCorp.v. Neh. ultimately ycar (8th a was and 993)(holding three one-half delay F.2d372,374-75 Cir.1 P o w e rDist.,999 "Relief is available circumstances undetRule60(bX6)only whereexceptional unreasonable). to thc havedenied movingpartya flrll andfair opportunity litigatchis claim andhaveprcvented F.3d redress." Harleyv. 7,oesch,413 866at 871. In adequatc themovingpartyfrom receiving

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frotn was was this instanoe motionto dismissthehabeas filed beforcthc Petitioner released the 14' from custotly or aboutJanuary 1977antl on was that custody.lt appears tlrePetitioner release exist circumstances lbr suchan at and to rcmaincd continuos rernain largcandno exceptional unreason a hdelay. le I I I . (lonclusion that Baseduponthe forgoing I rccommend the instantmotion to vacatepursuant to Rule 60(bxd)beDENIED. in T he partieshnve ten dnysfrom receiptof this report and rccommendation which to file writter objectionspursuant to 28 U.S,C.$cction636(b)(1).The fsilure to filc timely written objectionsmay rcsult in waiver of the right to appealquestionsof fnct. The parties arc remindedthat objectionsmust hc both timely and specilicto triggcr dc novo reviewby the district court. 15, this I ' l ' I S SOORDERED October 2009

/r/ J. llnrechersrki R, JAMES MARSCHEWSKI HONORABLE DISTRIC'I JIJDGE STATES UNITED

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