Bannister v. United States of America

Filing 39

ORDER denying 38 Rule 60(d)(1) motion. Signed by Judge James I. Cohn on 7/15/2011. (awe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 08-81228-CIV-COHN/WHITE
JUAN BANNISTER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
_________________________________/
ORDER DENYING PETITIONER’S RULE 60(d)(1) MOTION
THIS CAUSE is before the Court upon Petitioner Juan Bannister’s Application
Pursuant to Fed. R. Civ. P. 60(d)(1) to Challenge Judgment Denying Extension of Time
to file C.O.A. [DE 38] (“Motion”). The Court has carefully considered the Motion and the
record in this case, and is otherwise fully advised in the premises.
On October 30, 2009, the Court entered its Order Adopting Report of United
States Magistrate Judge [DE 28], dismissing Mr. Bannister’s Motion to Vacate Pursuant
to 28 U.S.C. § 2255 [DE 1]. Thereafter, the Court granted Mr. Bannister’s first request
for an extension of time to file his Certificate of Appealability [DE 30]. When Mr.
Bannister requested a second extension of time [DE 31], the Court entered its February
2, 2010 Order [DE 32] denying the request and stating that other than “the fact that the
institution where Mr. Bannister is incarcerated is on ‘lock down . . . the Motion fails to
explain[] why . . . Mr. Bannister has not been able to prepare a Motion for Certificate of
Appealability in the significant amount of time which has lapsed since October 30,
2009.” DE 32 at 1.
One year later, after an even larger amount of time had elapsed, Mr. Bannister
filed his first Rule 60 Motion [DE 35] requesting that the Court reopen his case, vacate

its February 2, 2010 Order, and allow Mr. Bannister to file a Certificate of Appealability,
pursuant to Federal Rule of Civil Procedure 60(b)(1). DE 35 at 3. The Court denied
that motion on February 2, 2011 [DE 36].
Now, after another five months have passed, Mr. Bannister once again requests
relief from the Court’s February 2, 2010 Order. This time, Mr. Bannister brings his
request pursuant to Federal Rule of Civil Procedure 60(d)(1). Rule 60(d)(1) provides
that Rule 60 “does not limit a court’s power to . . . entertain an independent action to
relieve a party from a judgment, order, or proceeding.” Fed. R. Civ. P. 60(d)(1).
However, this is not an independent action. Mr. Bannister’s request actually falls under
Rule 60(b), and as the Court ruled in its February 2, 2011 Order, Mr. Bannister has not
made the requisite showing to obtain relief under Rule 60(b). See DE 36. Accordingly,
it is hereby
ORDERED AND ADJUDGED that Petitioner Juan Bannister’s Application
Pursuant to Fed. R. Civ. P. 60(d)(1) to Challenge Judgment Denying Extension of Time
to file C.O.A. [DE 38] is DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 15th day of July, 2011

Copies provided to:
Counsel of record via CM/ECF
Juan Bannister, pro se
Reg. No. 72514-004
USP - Coleman I
United States Penitentiary
Inmate Mail/Parcels
P.O. Box 1033
Coleman, FL 33521
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