Fletcher v. Hulick et al

Filing 101

ORDER denying 98 Motion for relief from judgment and denying as moot 99 Motion for Leave to Proceed in forma pauperis. Signed by Judge David R. Herndon on 10/8/14. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT D. FLETCHER,
Petitioner,
v.

No. 08-0266-DRH

KIMBERLY BUTLER,

Respondent.
MEMORANDUM and ORDER
HERNDON, District Judge:
Pending before the Court is Fletcher’s motion from[sic] relief from
Judgment or Orders (Doc. 98) and motion to proceed in forma pauperis (Doc.
99).

Based on the following, the Court DENIES the motion for relief from[sic]

relief from judgment and DENIES as moot the motion to proceed in forma
pauperis.
Only a brief procedural history of this matter is needed to address the
pending motions. On April 8, 2008, Fletcher filed a habeas corpus petition
pursuant to 28 U.S.C. § 2254 (Doc.1).

At that time, then District Judge G.

Patrick Murphy was assigned to the case. On September 24, 2009, Magistrate
Judge Donald G. Wilkerson sua sponte appointed attorney Carter Collins Law to
Page 1 of 4

represent Fletcher pursuant to Local Rule 83.1(i) (Doc. 2). On September 30,
2011, the Court denied Fletcher’s second amended petition and judgment
reflecting the same was entered (Docs. 67 & 68).

Subsequently, the Court

denied a motion for objection and denied a motion to alter judgment (Doc. 71).
On November 23, 2011, the Court allowed Carter Collins Law leave to withdraw
as counsel for Fletcher from the case (Doc. 73).

On December 8, 2011, Fletcher,

pro se, filed a notice of appeal (Doc. 76). Thereafter, the Seventh Circuit issued
its Mandate affirming the judgment on May 16, 2013 (Doc. 92).
Nine months after the Mandate was issued, on February 20, 2014,Carter
Collins Law filed an ex parte motion to appoint counsel nunc pro tunc pursuant
to 18 U.S.C. § 3006A (Doc. 95).
undersigned.

That same day, the case was reassigned to the

On March 4, 2014, the Court granted the ex parte motion (Doc.

96).
Now before the Court is Fletcher’s motion from[sic] relief from judgment or
orders (Doc. 98).

Fletcher “filed the instant motion pro se and such request it be

liberally construed as a 60(b) motion, the motion is filed as a direct result of this
court retroactive appointment of counsel to the date of September 24, 2009
under the criminal Justice Act.”

He claims that he did not initially receive

protected statutory appointed counsel or the opportunity to reject appointed
counsel during actual habeas corpus proceedings.

He further claims that

counsel failed to make certain arguments during his habeas proceedings.
Based on the following, the rejects these arguments.
Page 2 of 4

Rule 60(b) permits a court to relieve a party from an order or judgment
based on grounds as mistake, surprise or excusable neglect by the movant,
fraud or misconduct by the opposing party; a judgment that is void or has been
discharged; or newly discovered evidence that could not have been discovered
within the 28-day deadline for filing a Rule 59 motion.

However, the reasons

offered by a movant for setting aside a judgment under Rule 60(b) must be
something that could not have been employed to obtain a reversal by direct
appeal. See, e.g., Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 743 (7th
Cir. 2009).

As this motion was filed over three years after the judgment,

almost a year and a half after the Seventh Circuit issued its Mandate affirming
the judgment and 7 months after the Court issued the nunc pro tunc Order, Rule
60(b) applies to this motion. The gist of Fletcher’s motion is that the case should
be reopened in light of the Court’s March 4, 2014 Order to allow him the right to
accept or reject statutorily appointed counsel.
appointed counsel and that he does.

He claims that he would reject

He maintains that instructed Carter

Collins Law to make certain arguments that were not made during the habeas
corpus proceeding.

Clearly, these arguments are meritless.

2014 Order did not affect the outcome of this case.
pro tunc” is defined as: “[n]ow for then.

The March 4,

The Court notes that “Nunc

A phrase applied to acts allowed to be

done after the time when they should have been done, with a retroactive effect,
i.e., with the same act effect as if regularly done.”

Black’s Law Dictionary, 737

(6th ed.1991). “The sole function of the nunc pro tunc doctrine is to correct
Page 3 of 4

clerical errors; the doctrine is not used to alter substantive rights. King v.
Ionization International, Inc., 825 F.2d 1180 (7th Cir. 1987); see, e.g., Shou Wei
Jin v. Holder, 572 F.3d 392, 397 (7th Cir.2009); Mamedov v. Ashcroft, 387 F.3d
918, 919 (7th Cir. 2004). “A court may issue a nunc pro tunc order to correct the
record so that it reflects what was actually done but never recorded due to
clerical inadvertence.” United States v. Taylor, 841 F.2d 1300, 1308 (7th
Cir.1988).

Thus, the March 4, 2014 Order is effective as if entered September

24, 2009 when Magistrate Judge Wilkerson made the appointment. The March
4, 2014 Order was about ministerial matters (to assure counsel was paid for
services rendered) and not about substantive matters.

Moreover, Fletcher

could have and should have raised his objections regarding his attorney’s
performance during the proceedings.

It is obvious that Fletcher is attempting to

re-litigate his case. He has offered nothing to support relief under Rule 60(b).
Further, the Court is convinced that the March 4, 2014 Order was correct.
Accordingly, the Court DENIES Fletcher’s motion from[sic] relief from
Judgment or Orders (Doc. 98) and DENIES as moot Fletcher’s motion to proceed
in forma pauperis (Doc. 99).
IT IS SO ORDERED.
Signed this 8th day of October, 2014.

Digitally signed
by David R.
Herndon
Date: 2014.10.08
10:17:51 -05'00'
United States District Court

Page 4 of 4