Parent v. Cain

Filing 33

ORDER & REASONS denying 24 Motion to Vacate; denying 30 Motion to Appoint Counsel ; denying as moot 32 Motion for Leave to File Amended Motion. Signed by Judge Helen G. Berrigan on 9/10/2015. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CRAIG PARENT

CIVIL ACTION

VERSUS

NO. 03-3608

N. BURL CAIN WARDEN

SECTION "C"

ORDER AND REASONS
Before this Court is pro se petitioner Craig Parent's Motion to Vacate Judgment pursuant to
Federal Rule of Civil Procedure 60(b)(1), (2) and (6). (Rec. Doc. 24). The District Attorney for the
Louisiana 24th Judicial District Court filed an opposition. Petitioner filed a "Traverse to Respondent's
Opposition," which this Court will treat as a reply to the opposition. (Rec. Doc. 31). Petitioner has
also filed a Motion to Appoint Counsel (Rec. Doc. 30) and a Motion for Leave to File an Amended
Motion to Vacate Judgment. (Rec. Doc. 32). For the reasons stated below, all three motions are
DENIED.
Petitioner is a state court prisoner incarcerated at the Louisiana State Penitentiary in Angola,
Louisiana. On June 6, 2011, Petitioner was convicted by a jury in the 24th Judicial District Court,
Jefferson Parish of unauthorized entry of an inhabited dwelling, unauthorized use of a motor vehicle,
simple burglary, extortion, and three counts of intimidating a witness. He was sentenced to a term
of imprisonment for life, after having been determined to be a third felony offender. Petitioner

appealed to the Louisiana Fifth Circuit Court of Appeal, which upheld his conviction and sentence.1
The Louisiana Supreme Court denied Petitioner's application for a supervisory writ.2
Petitioner, after exhausting his state court remedies for challenging his sentence, filed a writ
of habeas corpus on December 11, 2003 in this Court. (Rec. Doc. 1). The petition was denied with
prejudice on December 13, 2004 by this Court. (Rec. Doc. 11). Petitioner appealed to the Fifth
Circuit Court of Appeals which denied his certificate of appealability on December 22, 2005. (Rec.
Doc. 20). The United States Supreme Court denied Petitioner's petition for a writ of certiorari on
May 30, 2006. (Rec. Doc. 23). Petitioner filed the instant motion to vacate judgment on May 22,
2015, nearly nine years after the Supreme Court's denial of his writ. (Rec. Doc. 24).
Petitioner brings the instant motion to vacate pursuant to Federal Rule of Civil Procedure
60(b)(1), (2) and (6) in which he seeks to have this Court vacate its previous ruling denying his
habeas petition with prejudice and to "permit the filing of new claims in amendment thereof." (Rec.
Doc. 24 at 5). In addition, Petitioner has filed a motion for the appointment of counsel in order to
help in "[d]rafting the Initial Amended Habeas Corpus Petition" that Petitioner expects to file once
this Court, as he "duly believes" it will, grants his motion to vacate. (Rec. Doc. 30 at 1). Petitioner
has also filed a motion to amend his motion to vacate in which he seeks to correct "erroneous dates
and docket numbers" for state court pleadings referenced in his motion. (Rec. Doc. 32 at 1).
Federal Rule of Civil Procedure 60(b)(1) allows for relief from a final judgment or order for

1

State v. Parent, 836 So.2d 494 (La. App. 5 Cir. 2002).

2

State v. Parent, 857 So.2d 472 (La. 2003).

2

"mistake, inadvertence, surprise, or excusable neglect." Subsection (2) extends relief from a final
judgment or order for "newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to more for a new trial under Rule 59(b)." F.R.C.P. 60(b)(2). Finally,
Petitioner has also cited subsection (6) as a basis for his motion, which states that relief may also
be granted for "any other reason that justifies relief." F.R.C.P. 60(b)(6).
Rule 60 is "an extraordinary remedy which should be used sparingly." Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). The Fifth Circuit has articulated several factors
for the court to consider when addressing Rule 60(b) motions. Those factors include:
(1) final judgments should not be lightly disturbed; (2) the rule is not to be used as a
substitute for appeal; (3) the rule should be liberally construed in order to do substantial
justice; (4) the timeliness of the motion; (5) whether the interest in deciding the case on the
merits outweighs the interest in finality of the judgment and there is merit in the movant's
claims; (6) whether there are any intervening equities that would make it inequitable to grant
relief; and (7) any other factor relevant to the justice of the judgment under attack.
Coleman v. Cain, Civ. Action No. 05-799, 2009 WL 3400462 (E.D. La. Oct. 14, 2009), citing
Edward H. Bohlin Co. v. The Banning Co., 6 F.3d 350 (5th Cir. 1993).
A Rule 60(b) motion must be brought within a "reasonable time. Federal Rule of Civil
Procedure 60(c)(1) stipulates that a Rule 60(b)(1) or Rule60(b)(2) motion must be brought "no more
than a year after the entry of the judgment or order or the date of the proceedings." For a Rule
60(b)(6) motion, "reasonable time" is "defined by the particular facts and circumstances of each
case." Associated marine Equipment, LLC v. Jones, 407 Fed. Appx. 815, 816 (5th Cir. 2011). These
time limitations will apply unless the movant can show good cause for the delay, which is evaluated
on a case-by-case basis. In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004).
While the Supreme Court has acknowledged the important role Rule 60(b) can play in federal

habeas cases, the Supreme Court has made clear the rule is not to be used to attack the district
court's resolution of a claim on the merits, but rather a "defect in the integrity of the federal habeas
proceedings." Gonzalez v. Crosby, 545 U.S. 524, 532-4, 125 U.S. S.Ct. 2641, 2649, 162 L.Ed.2d 480
(2005). Further, Rule 60 cannot be used to present new claims for relief from the state court
conviction unless it relies on either a new rule of constitutional law or newly discovered facts as
required under AEDPA. Id. at 531-532, citing §2244(b)(2).
Petitioner, however, is attempting to use Federal Rule of Civil Procedure 60 as a vehicle to
re-open his previously dismissed habeas petition and reassert claims that have been denied when
the Fifth Circuit Court of Appeal denied Petitioner's second and successive habeas application. In
addition, Petitioner has filed his motion nearly eleven years after the order he wishes to vacate was
issued and has failed to show good cause for the delay. Petitioner's motion is clearly untimely.
Since Petitioner's motion is untimely, there is no reason to allow him to amend the motion
nor is there any reason to appoint him counsel to pursue his previous habeas petition.
Accordingly,
IT IS ORDERED that the motion to vacate filed by is DENIED. (Rec. Doc. 24).
IT IS FURTHER ORDERED that the motion to appoint counsel is DENIED. (Rec. Doc.
30).
IT IS FURTHER ORDERED that the motion for leave to file an amended motion is
DENIED as MOOT. (Rec. Doc. 32).

New Orleans, Louisiana, this ____ day of August, 2015.

UNITED STATES DISTRICT JUDGE