Bunch v. Cain, et al
ORDER denying 36 Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure Rule 60(d)(1) and (3). Signed by Magistrate Judge Alma L. Chasez. (lag, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BURL CAIN, WARDEN
Pursuant to an Order of Reference from the District Judge
(rec. doc. 38), presently before the Court is petitioner's Motion
Procedure Rule 60(d)(1) and (3).
(Rec. doc. 36).
Petitioner initiated the above-captioned habeas proceeding in
1997, asserting a Brady claim that a weapon that was located near
the scene of the murder of which he stands convicted was not
introduced at his trial in 1982 and was only later learned of in
In due course, a Report and Recommendation was issued
recommending that Bunch's petition be denied as the discovery and
presentation of the weapon to the jury did nothing to advance his
Recommendation were filed by Bunch pro se (rec. docs. 21, 22) and,
subsequently, by his retained counsel.
(Rec. doc. 24).
20, 2000, Judgment was entered dismissing Bunch's habeas petition
and a Certificate of Appealability ("COA") was later denied. (Rec.
docs. 26, 28).
The Fifth Circuit likewise denied Bunch a COA on
November 21, 2000.
(Rec. doc. 29).
Almost thirteen years later,
Bunch moved for relief from the Judgment under Rule 60(b)(2), (3),
(4), and (5) which the Court denied on July 9, 2013.
Changing tack, Bunch now seeks relief pursuant to Rule
60(d)(1) and (3), citing a lack of subject matter jurisdiction, a
lack of exhaustion by the State on his Brady claim, "fraud" upon
the Court by the State, nullity and voidness of the judgment, and
the incompleteness of the transcript of an evidentiary hearing that
was held before the state trial court.
Rule 60(d)(1) of the Federal Rules of Civil Procedure empowers
a court to "entertain an independent action to relieve a party from
a judgment, order, or proceeding ..."
The Court declines to
convert Bunch's motion to an independent action as he makes no
showing of having obtained leave from the Fifth Circuit to file a
second or successive habeas application as is required under 28
In any event, Bunch has not demonstrated that
the issues that he now raises were not open to litigation during
the pendency of his habeas proceeding.
Turner v. Pleasant, 663
F.3d 770, 776 (5th Cir. 2011).
In terms of the alleged lack of subject matter jurisdiction,
notwithstanding that such is not an enumerated ground for relief
under Rule 60(d)(3), jurisdiction over Bunch's federal habeas
petition was clearly prescribed by 28 U.S.C. §§2241(a) and 2254(a).
As for the purported lack of exhaustion of state court remedies on
petitioner in a habeas proceeding, as opposed to the State, who
bears the burden of exhausting the remedies that are available in
the state courts.
28 U.S.C. §2254(b)(1)(A).
Moreover, as was
pointed out in the Court's previous order denying Bunch's motion
under Rule 60(b), exhaustion is based upon comity rather than
jurisdiction, Graham v. Johnson, 168 F.3d 762, 777-78 (5th Cir.
1999), cert. denied, 529 U.S. 1097, 120 S.Ct. 1830 (2000), and
exhaustion may be waived by the State.
1206, 1211-12 (5th Cir. 1984).
McGee v. Estelle, 722 F.2d
The Court's judgment dismissing
Bunch's federal habeas petition was thus neither null nor void even
if those grounds were embraced by Rule 60(d)(3).
Turning to the alleged fraud on the Court, the only ground for
relief that is enumerated in Rule 60(d)(3), such a ground is
demanding indeed, reserved only for the most egregious misconduct
such as the bribery of a judge or members of the jury or the
Jackson v. Thaler, 348 Fed.Appx. 29, 34 (5th Cir.
Initially, the Court notes that much of the "fraud"
complained of by Bunch occurred before the Louisiana Supreme Court
during proceedings which resulted in the reinstatement of his
conviction in 1997.
State v. Bunch, 695 So.2d 1341 (La. 1997).
Accordingly, his complaints concerning any acts and omissions which
occurred in the context of that proceeding should be directed to
To the extent that Bunch complains that he was not
furnished with a complete copy of the transcript of an evidentiary
hearing that was conducted before the state trial court in July,
August, September, and October of 1996, as he admits that he has
yet to be provided with a complete copy of said transcript, his
allegations are speculative at best.
In any event, as all of this
was known to Bunch at the time that his petition was pending here,
he has not demonstrated a material subversion of the legal process
in this case such as could not have been exposed within the oneyear window provided by what is now Rule 60(c).
Fed.Appx. at 34-35.
Otherwise, to the extent that the fraud
complained of by Bunch concerned his Brady claim itself, that claim
was thoroughly considered by both this Court and the Fifth Circuit
and was found to be without merit. For these reasons, Bunch's Rule
60(d) motion is hereby denied.
Hello This is a Test
New Orleans, Louisiana, this 19th day of _____________, 2013.
ALMA L. CHASEZ
UNITED STATES MAGISTRATE JUDGE
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