Heddings v. Garcia
ORDER granting 37 Motion To Recharacterize Prior Filing; denying 35 Motion For Relief From Judgment; by Judge Robert E. Blackburn on 1/14/13. (kfinn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-01662-REB
SCOTT P. HEDDINGS,
RENE GARCIA, Warden,
ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT
This matter is before me on the following: (1) the applicant’s Motion For Relief
From Judgment - F.R.Civ.P. 60(b)(6) [#35]1 filed September 5, 2012; and (2) the
applicant’s Motion To Recharacterize Prior Filing [#37] filed January 8, 2013. I grant
the motion to re-characterize and deny the motion for relief from judgment.
I must and do construe the papers filed by the applicant liberally because he is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I may not be
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
This case concerns the applicant’s Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 [#3] filed July 13, 2010. On July 8, 2011, I entered an
order [#25] denying the application. On August 7, 2012, the United States Court of
“[#35]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
Appeals for the Tenth Circuit entered an order [#34] affirming the denial of the
application. Subsequent to the Tenth Circuit’s ruling, the applicant filed his motion [#35]
for relief from judgment under FED. R. CIV. P. 60(b)(6). In his most recent motion [#37],
the applicant seeks to convert his previous motion [#35] to a motion under FED. R. CIV.
P. 60(b)(4). I grant the motion to convert.
Under FED. R. CIV. P. 60(b)(4), the court may relieve a party from a final
judgment if the judgment is void. In his present motions [#35 & #37], the plaintiff does
not present any evidence or authority that demonstrates that the judgment in this case
is void. In fact, the record is to the contrary. Thus, the request for relief under FED. R.
CIV. P. 60(b)(4) should be denied.
THEREFORE, IT IS ORDERED as follows:
1. That the applicant’s Motion To Recharacterize Prior Filing [#37] filed
January 8, 2013, is GRANTED;
2. That the applicant’s Motion For Relief From Judgment - F.R.Civ.P. 60(b)(6)
[#35] filed September 5, 2012, shall be construed as a motion seeking relief under FED.
R. CIV. P. 60(b)(4) and shall be considered in conjunction with the argument and
authority stated by the applicant in his Motion To Recharacterize Prior Filing [#37]
filed January 8, 2013; and
3. That the applicant’s Motion For Relief From Judgment - F.R.Civ.P. 60(b)(6)
[#35] filed September 5, 2012, is DENIED.
Dated January 14, 2013, at Denver, Colorado.
BY THE COURT:
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