Hicks v. Cain et al
Filing
22
ORDER AND REASONS denying 19 Motion for Relief from Judgement and Order pursuant to Federal Rule of Civil Procedure 60(b). Signed by Judge Helen G. Berrigan on 02/19/2014. (kac, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LENARD T. HICKS #352242
CIVIL ACTION
VERSUS
NO. 06-2009
NATHAN BURL CAIN
SECTION C(6)
ORDER AND REASONS
Before the Court is petitioner’s Motion for Relief from Judgement and Order pursuant to
Federal Rule of Civil Procedure 60(B). Rec. Doc. 19. By order of this Court, the respondent has
filed an opposition. Rec. Doc. 21. The Court, having considered the record, the law, and the
memoranda of the parties, hereby DENIES petitioner’s motion for the reasons that follows.
On December 16, 2008, this Court entered judgment dismissing petitioner’s petition for
habeas corpus as untimely. Rec. Doc. 15. The Order and Reasons corresponding to judgment
concluded that petitioner’s petition should be dismissed with prejudice as untimely. Rec. Doc.
14. Specifically, the Court reasoned that because the one year statute of limitations for filing a
petition for habeas corpus under 28 U.S.C. 2254(d)(1)(A) had only been suspended by the
granting of an out-of-time appeal in petitioner’s case at the state court, the habeas corpus statute
of limitations had expired more than two years before petitioner filed the above-captioned
petition. Id.
By the current motion, petitioner attacks the Court’s reliance on Salinas v. Dretke, 354
F.3d 425 (5th Cir. 2004) to conclude that petitioner’s out-of-time appeal only suspended the
statute of limitations on his petition for habeas corpus. In Jimenez v. Quarterman, 555 U.S. 113,
129 S. Ct. 681, 172 L. Ed. 2d 475 (2009), the United States Supreme Court unanimously rejected
the rule of Salinas, concluding instead that an out-of-time appeal granted before a defendant has
filed for habeas corpus relief has the effect of undoing the finality of his conviction and
interrupting, rather than suspending, the statute of limitations for his habeas petition. In such
cases, the statute of limitations restarts only after the judgment of the state court becomes final in
light of the out-of-time appeal. Jimenez, 555 U.S. at 121, 129 S. Ct. at 686-87.
However, Jiminez was announced only after this Court entered judgment in this case, and
the Fifth Circuit has rejected retroactive application of the rule in Jimenez to judgments via Rule
60(b). Hernandez v. Thaler, 630 F.3d 420, 427-31 (5th Cir. 2001). Further, even granting
petitioner the benefit of the Jimenez rule, his statute of limitations would have expired on May
10, 2003. Petitioner’s applications for state post-conviction relief were filed well after this date
and therefore too late to suspend or toll the expiration of limitations in this case. For these
reasons, Jimenez offers no help to petitioner.
Accordingly,
IT IS ORDERED that petitioner’s Motion for Relief from Judgement and Order pursuant
to Federal Rule of Civil Procedure 60(B) is DENIED. Rec. Doc. 19.
New Orleans, Louisiana, this 19th day of February 2014
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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?