Glenn v. Secretary Department of Corrections et al

Filing 26

ORDER denying 23 Petitioner's Motion for relief from judgment under Rule 60(b)(6). Signed by Judge Charlene Edwards Honeywell on 11/14/2023. (MMS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BOBBY GLENN,
Petitioner,
-vs-

Case No.

8:16-cv-699-CEH-TGW

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________/
ORDER
Before the Court is Petitioner’s motion for relief from judgment under Rule
60(b)(6). (Doc. 23). “Rule 60(b)(6) is a catchall provision; it permits a court to relieve a
party from a final judgment upon such terms as are just, provided that the motion is made
within a reasonable time....” Rismed Oncology Sys., Inc. v. Baron, 2015 U.S. App. LEXIS
12335, at *18-19 (11th Cir. July 17, 2015) (unpublished) (citation and internal quotation
marks omitted). Additionally, “[r]elief under Rule 60(b)(6) is an extraordinary remedy
which may be invoked only upon a showing of exceptional circumstances, and that absent
such relief, an extreme and unexpected hardship will result.” Id. at *19 (citations and
internal quotation marks omitted). Finally, “even under exceptional circumstances, the
decision to grant Rule 60(b)(6) relief is a matter for the court’s sound discretion.” Id.
(citations omitted).
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The motion is primarily based on the alleged insufficiency of the evidence at
Petitioner’s trial and Mendez v. State, 271 So. 3d 1093 (Fla. 3d DCA 2019), a case
Petitioner asserts “clarified major change of law[].” (Doc. 23 at 7). Petitioner’s arguments
about the sufficiency of the evidence were available when he filed his petition in 2016.
And the decision in Mendez was issued on February 13, 2019. This motion was filed on
August 25, 2023. Thus, Petitioner waited more than four years from the time that Mendez
was issued to file this motion. This four-year delay was not “within a reasonable time” as
contemplated by the Rule.
Even if the motion was filed within a reasonable time, the Court would exercise its
discretion and deny the motion, as Petitioner has failed to demonstrate that exceptional
circumstances warrant granting him relief from the Court’s Order dismissing his federal
habeas petition. Dismissal of his petition was appropriate because the petition was
untimely, and Petitioner has failed to present a colorable claim of actual innocence to
overcome the time bar. See, e.g., Johnson v. Alabama, 256 F.3d 1156, 1171-72 (11th Cir.
2001) (finding claim of insufficient evidence at trial, with no new evidence, did not
establish actual innocence to overcome procedural bar).
Accordingly, it is ORDERED that Petitioner’s motion for relief from judgment
under Rule 60(b)(6) (Doc. 23) is DENIED.

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CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
The Court declines to issue a certificate of appealability because Petitioner has
failed to make a substantial showing of the denial of a constitutional right as required by
28 U.S.C. § 2253(c)(2). Nor will the Court authorize the Petitioner to proceed on appeal
in forma pauperis because such an appeal would not be taken in good faith. See 28 U.S.C.
§ 1915(a)(3).
DONE and ORDERED in Tampa, Florida on November 14, 2023.

Copies to: Petitioner pro se
Counsel of Record

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