Brown v. Sikes, et al
ORDER denying 82 Motion to Set Aside Judgment; denying 83 Motion for Disqualification and Recusal; finding as moot 85 Motion for Ruling on the Motion for Disqualification and Recusal. A certificate of appealability of denied. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 1/24/17 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
WALTER LEE BROWN,
No. 5:96‐CV‐58 (CAR)
JOHNNY C. SIKES,
ORDER ON FOURTH MOTION TO SET ASIDE JUDGMENT AND
MOTION FOR DISQUALIFICATION AND RECUSAL
Before the Court are Petitioner Walter Brown’s Motion to Set Aside Judgment
[Doc. 82] denying his 28 U.S.C. § 2254 petition under Federal Rule of Civil Procedure
60(b) and Motion for Disqualification and Recusal [Docs. 83] of the undersigned
pursuant to 28 U.S.C. §§ 455(a) and (b)(1). For the reasons set forth below, Petitioner’s
Motions [Docs. 82 & 83] are DENIED.
In 1992, a jury in Macon County Superior Court found Petitioner guilty of malice
murder, felony murder, aggravated assault, and simple assault. That court sentenced
Petitioner to life plus 21 years’ imprisonment. In 1996, Petitioner filed a pro se 28 U.S.C.
§ 2254 petition in this Court, challenging his state court conviction and alleging eleven
grounds for relief. Of these eleven grounds, four included Fourth Amendment claims
related to the denial of several motions to suppress. On December 15, 1997, this Court
adopted the Magistrate Judge’s Recommendation to deny Petitioner’s habeas petition,
finding, in relevant part, that Petitioner’s Fourth Amendment claims were barred by
Stone v. Powell.1 A few weeks later, this Court also denied Petitioner’s motion for
reconsideration and motion for a certificate of appealability.
Thereafter, Petitioner filed an appeal with the Eleventh Circuit Court of Appeals.
On April 21, 1998, the Eleventh Circuit denied a certificate of appealability due to
Petitioner’s failure to make a substantial showing of the denial of a federal right.2 For
the next fourteen years, Petitioner filed no other motion. Then, between 2012 and 2015,
Petitioner filed three motions pursuant to Rule 60(b) to set aside the judgment entered
in 1997. This Court dismissed each motion as successive petitions over which the Court
lacked subject matter jurisdiction. Petitioner appealed all three dismissals and filed
motions for certificate of appealability with the Eleventh Circuit.
The Eleventh Circuit dismissed the first appeal for want of prosecution. As to
the second appeal, the Eleventh Circuit denied Petitioner’s request for a certificate of
appealability for failure to make the requisite showing of a denial of a federal right.3 As
to the third appeal, in ruling on the motion for a certificate of appealability, the
Eleventh Circuit stated this Court erred in dismissing the Rule 60(b) motion as a second
428 U.S. 465 (1976).
Brown v. Sikes, No. 98‐8040 (11th Cir. April 16, 1998) (“Because appellant has failed to make a substantial
showing of the denial of a federal right, his motion for a certificate of probable cause is DENIED.”); [Doc.
3 Brown v. Bowers, No. 14‐11903‐D (11th Cir. Aug. 4, 2014); [Doc. 68].
or successive habeas petition. 4 Nonetheless, the Eleventh Circuit determined Petitioner
could not show this Court “abused its discretion because [Petitioner’s] claims are barred
under the law of the case doctrine.”5 Thus, the Eleventh Circuit again denied
Petitioner’s motion for a certificate of appealability.
Now, Petitioner brings his fourth Motion to Set Aside Judgment pursuant to
Rule 60(b), raising the same arguments as those in his previous Rule 60(b) motions. In
general, Petitioner contends Respondent fraudulently represented to the Court that
Petitioner’s evidence claims received a full and fair hearing in state court, and this
misrepresentation caused the Court to unlawfully accord a presumption of correctness
to the state court’s findings and determine the Fourth Amendment claims were Stone‐
barred. Additionally, Petitioner seeks recusal under 28 U.S.C. §§ 455(a) and (b)(1),
arguing disqualification and recusal are warranted because the undersigned gives the
appearance of bias and prejudice against him based on the previous Rule 60(b) motions.
The Court will first address the Motion for Recusal and then discuss Petitioner’s Rule
Motion for Disqualification and Recusal
“Recusal is required in certain circumstances, including when the judge ‘has a
Brown v. Warden, No. 15‐12351‐E (11th Cir. Sept. 17, 2015); [Doc. 80].
personal bias or prejudice concerning a party ….’”6 “The bias or prejudice must be
personal and extrajudicial; it must derive from something other than that which the
judge learned by participating in the case.”7 Additionally, under 28 U.S.C. § 455(a),
“[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.”8 The
standard under subsection (a) is objective and requires the court to ask “whether an
objective, disinterested, lay observer fully informed of the facts underlying the grounds
on which recusal was sought would entertain a significant doubt about the judge’s
impartiality.”9 “[A] judge’s rulings in the same or a related case are not a sufficient
basis for recusal,” except in rare circumstances where the previous proceedings
demonstrate pervasive bias and prejudice.10
Here, Petitioner contends the undersigned “willfully and intentionally relied
upon an erroneous interpretation of the applicable standard of law” in determining
Petitioner’s previous Rule 60(b) motions were successive. Petitioner points to the “fact”
that the Eleventh Circuit determined the undersigned “abused its discretion” in
United States v. Patterson, 292 F. App’x 835, 837 (11th Cir. 2008) (per curiam) (quoting 28 U.S.C. §
7 United States v. Amedeo, 487 F.3d 823, 828 (11th Cir. 2007), cert. denied, 552 U.S. 1049 (2007) (internal
quotation marks omitted).
8 28 U.S.C. § 455(a).
9 United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (internal quotation marks omitted) (quoting
United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989)).
10 Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000); see also Liteky v. United States, 510 U.S. 540, 555 (1994)
(“[J]udicial rulings alone almost never constitute valid basis for a bias or partiality recusal motion.”).
dismissing these motions as evidence the undersigned cannot make a fair judgment in
this case.11 Petitioner’s contentions are without merit for several reasons.
First, contrary to Petitioner’s assertion, the Eleventh Circuit specifically stated
Petitioner could not show this Court abused its discretion. Second, Petitioner does not
point to any statements in the previous Orders or present any evidence to support his
accusation that the undersigned “willfully and intentionally” applied “an erroneous
interpretation” of the law to dismiss Petitioner’s Rule 60(b) motion. Lastly, Petitioner
does not provide any evidence of a personal, non‐judicial bias, nor does he state with
specificity any impartiality in the previous proceedings that would demonstrate
pervasive bias or prejudice. Recusal in this case is not warranted simply because the
Court previously erred in dismissing the Rule 60(b) motions as successive.
Accordingly, Petitioner’s Motion for Disqualification and Recusal [Doc. 83] is
Motion to Set Aside Judgment
Rule 60(b) provides a limited basis for a party to seek relief from a final judgment
if the “judgment is void” or “for any other reason that justifies relief.”12 In the context
of a habeas action, a Rule 60(b) motion that “seeks to add a new ground for relief,” or
“attacks the federal court’s previous resolution of a claim on the merits,” constitutes a
[Docs. 83 & 83‐1].
Fed. R. Civ. P. 60(b)(4), (6).
second or successive habeas petition and is therefore subject to successive petition
restrictions.13 Conversely, where a Rule 60(b) motion “attacks, not the substance of the
federal court’s resolution of a claim on the merits, but some defect in the integrity of the
federal habeas proceedings,” the motion should not be considered a second or
successive habeas petition.14 Such motion “properly may: (1) assert that a federal
court’s previous habeas ruling that precluded a merits determination was in error; (2)
allege a clerical error in the habeas judgment, which technically falls under Rule 60(a);
or (3) allege a fraud upon the federal habeas court under Rule 60(b)(3).”15
In this case, Petitioner primarily argues that (1) the state perpetrated a fraud
upon this Court, (2) this Court erred in dismissing Petitioner’s Fourth Amendment
claims as Stone‐barred, and (3) the dismissal was void because it was inconsistent with
due process. Thus, Petitioner has properly raised these claims in this Rule 60(b) motion
that cannot be dismissed as a second or successive petition.16 Nonetheless, Petitioner’s
claims still fail.
As an initial matter, Petitioner’s Rule 60(b) Motion is untimely. Under Rule
60(c), a Rule 60(b) motion alleging fraud, misrepresentation, or misconduct by an
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).
15 Brown, No. 15‐12351‐E (11th Cir. Sept. 17, 2015) (citing Gonzalez, 545 U.S. at 532 n. 4‐5); [Doc. 80].
16 See id. (“Habeas petitioners may properly raise a claim of fraud upon the court in a Rule 60(b) motion.
See Gonzalez, 545 U.S. at 532 n.5…. Additionally, [Petitioner’s] challenges to the district court’s
determination that his Fourth Amendment claims were Stone‐barred are challenges to a ruling that
precluded a merits determination. See id. at 532 n.4….”).
opposing party must be made “no more than a year after the entry of judgment or order
of the date of the proceeding.”17 Here, judgment was entered in 1998, but Petitioner did
not bring a Rule 60(b) motion alleging fraud upon the court until 2012. This clearly
extends well past the one year limitation, and is therefore untimely. However, because
Rule 60(d) authorizes this Court to “entertain an independent action to relieve a party
from a judgment” even if the year has passed, the Court will consider the merits of
Under Rule 60(d), “[f]raud upon the court… embraces only ‘… fraud which does
or attempts to, defile the court itself … so that the [judiciary] cannot [properly decide
the] cases that are presented for adjudication.’”19 “[O]nly the most egregious
misconduct, such as bribery of a judge or members of a jury, or the fabrication of
evidence by a party in which an attorney is implicated, will constitute a fraud on the
court.”20 An action for fraud on the court should be available only to “prevent a grave
miscarriage of justice.”21 Further, Petitioner “must show an ‘unconscionable plan or
Fed. R. Civ. P 60(b)(3), (c)(1).
Fed. R. Civ. P. 60(d); see also Day v. Benton, 346 F. App’x 476, 478 (11th Cir. 2009) (per curiam).
19 Day, 346 F. App’x at 478; see also Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985) (per
curiam) (“’Fraud upon the court’ should, we believe, embrace only that species of fraud which does or
attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial
machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented
20 Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978).
21 United States v. Beggerly, 524 U.S. 38, 47, 118 S.Ct. 1862, 1868, 141 L.Ed.2d 32 (1998).
scheme’ to improperly influence the courtʹs decision.”22 “Conclusory averments of the
existence of fraud made on information and belief and unaccompanied by a statement
of clear and convincing probative facts which support such belief do not serve to raise
the issue of the existence of fraud.”23
Petitioner argues Respondent perpetuated fraud on this Court by
misrepresenting that the state court had actually resolved the merits of the factual
dispute regarding his motions to suppress. Such fraud, in turn, led the Court to
incorrectly determine Petitioner’s Fourth Amendment claims were Stone‐barred.
However, this argument wholly ignores that the Magistrate Judge reviewed all of the
pleadings, motions, and exhibits therein, and this Court’s conducted a de novo review of
these claims after Petitioner filed an objection.24 This Court’s decision was not based
solely on representations in Respondent’s briefs.25 Further, Petitioner does not present
any evidence to show Respondent had an unconscionable scheme to improperly
influence the Court or that any alleged misrepresentations were material.26 Ultimately,
Galatolo v. United States, 394 F. App’x 670, 673 (11th Cir. 2012) (per curiam) (citing Rozier, 573 F.2d at
23 Booker v. Dugger, 825 F.2d 281, 284‐85 (11th Cir. 1987) (quotation omitted).
24 [Docs. 29, 31, & 37].
25 [Doc. 29] (Petitioner was “afforded a full and fair opportunity to litigate his Fourth Amendment claims
at the state court level, [and thus, was] precluded from litigating his Fourth Amendment claims” under
26 See Galatolo 394 F. App’x at 673 (“[The petitioner] also has failed to provide clear and convincing
probative facts indicating that the Government had an unconscionable scheme to improperly influence
the court.”); Gonzalez v. Secretary for Dep’t of Corrections, 366 F.3d 1253, 1285 (11th Cir. 2004) (“There can be
no fraud unless the falsehood is material, and here the alleged falsehood is immaterial.”).
Petitioner cannot establish fraud upon this Court that led to the denial of his habeas
petition. Accordingly, because Petitioner fails to establish the “sufficiently
extraordinary” circumstances necessary to warrant relief under Rule 60(b), his Motion
[Doc. 82] is DENIED.27
Based on the foregoing, Petitioner’s Motion for Disqualification and Recusal
[Doc. 83] and Motion to Set Aside Judgment [Doc. 82] are DENIED, and Petitioner’s
Motion for Ruling on the Motion for Disqualification and Recusal [Doc. 85] is MOOT.
Additionally, because Petitioner has failed to make a substantial showing of the denial
of a constitutional right, a certificate of appealability is DENIED.
SO ORDERED, this 24th day of January, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?