SMITH v. STATE OF FLORIDA et al

Filing 28

ORDER: Petitioner's 27 MOTION to Vacate Void/Judgment/Order and Release Petitioner According to Federal Rule Civil Procedure 60(b)(4) is DENIED. Signed by MAGISTRATE JUDGE GARY R JONES on 12/28/2012. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
TED SMITH,
Petitioner,
v.

CASE NO. 1:11-cv-265-MP-GRJ

WILLIAM S. BAXTER,
NFETC Administrator,
and FRANK E. SHEFFIELD,
Circuit Judge, Gadsden County,
Respondents.
_____________________________/
ORDER
Pending before the Court is Petitioner’s “Motion to Vacate Void/ Judgment/ Order
and Release Petitioner According to Federal Rule Civil Procedure 60(b)(4).” (Doc. 27.)
Petitioner purports to request relief under Federal Rule of Civil Procedure 60(b)(4), and
asserts that the judgment in his state case was void because the state court failed to
obtain witnesses and prohibited witnesses and Petitioner from speaking. For the
following reasons, the motion is due to be denied.
Initially, the Court notes that Petitioner has presented an identical claim in the
instant motion as he presented in the original § 2254 petition. Accordingly, the Court
will construe the purported motion under Rule (60)(b)(4) as a motion to amend
Petitioner’s pending motion under 28 U.S.C. § 2254 See Gonzalez v. Crosby, 545 U.S.
524, 530-531 (2005). Because the proposed amendment would offer no new legal
arguments or evidence, Petitioner’s motion for leave to amend is due to be denied.

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Accordingly, it is hereby ORDERED that:
Petitioner’s “Motion to Vacate Void/ Judgment/ Order and Release Petitioner
According to Federal Rule Civil Procedure 60(b)(4),” Doc. 27, is DENIED.
DONE AND ORDERED this 28th day of December 2012.

s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge

Case No: 1:11-cv-265-MP-GRJ