Phillips v. Cain et al
ORDER & REASONS: denying 44 Motion for Relief from a Final Judgement, Order, or Proceeding. Signed by Judge Carl Barbier on 2/24/17. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
N. BURL CAIN
ORDER AND REASONS
Before the Court is a Motion for Relief from a Final Judgement,
Order, or Proceeding (Rec. Doc. 44) filed by pro se Petitioner Henry
Phillips (“Petitioner”), an opposition thereto (Rec. Doc. 47) filed by
Defendant N. Burl Cain (“Defendant”), and a reply filed by Petitioner
(Rec. Doc. 49).
Having considered the motion and legal memoranda, the
record, and the applicable law, the Court finds that the motion should
FACTS AND PROCEDURAL BACKGROUND
Petitioner is a state prisoner incarcerated at the Louisiana State
Penitentiary in Angola, Louisiana. On October 19, 2009, he was convicted
of purse snatching under Louisiana Law.
Rev. Stat. § 14:65.1.
(Rec. Doc. 26 at 2.); see La.
Petitioner was initially sentenced to a term of
ten years imprisonment. Id.
However, Petitioner was later found to be
a third offender, and was then resentenced to a term of life imprisonment
on January 20, 2010.
On February 17, 2011, the Louisiana Fourth
Circuit Court of Appeal affirmed his conviction and sentence, and the
Louisiana Supreme Court denied his related writ application on October
On or about October 29, 2012, Petitioner filed an application for
application was denied on December 11, 2012.
His related writ
applications were similarly denied by the Louisiana Fourth Circuit Court
of Appeal on January 30, 2013, and the Louisiana Supreme Court on July
Id. at 2-3.
Petitioner then filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254 in this Court, asserting that his
(Rec. Doc. 3.)
In a judgment issued on September 26,
2014, this Court dismissed the petition with prejudice.
(Rec. Doc. 34.)
On August 1, 2016, Petitioner filed the instant Motion for Relief from
a Final Judgement, Order, or Proceeding (Rec. Doc. 44), asserting that
a fraud had been perpetrated on the court and also alleging “other
misconduct.” Id. at 5.
Petitioner asserts that the Court should provide relief under
Federal Rule of Civil Procedure (“Rule”) 60(b)(3) and Rule 60(d)(3).
(Rec. Doc. 44.)
Petitioner argues that his trial judge committed fraud
on the court and that the federal court has “worked in collusion with
officers of the State court” in furtherance of a “cover-up.” Id. at 1.
Petitioner contends that he could not fairly present his case at trial
because the trial judge withheld a surveillance tape of the crime from
Id. at 13-14.
Respondent argues that Petitioner’s motion should be dismissed as
untimely or denied as meritless. (Rec. Doc. 47 at 10.) Respondent
contends that Petitioner’s motion for relief pursuant to Rule 60(b)(3)
should be denied because it was filed more than a year after entry of
the Court’s September 26, 2014 Judgment.
Id. at 2.
Respondent argues that Petitioner’s Rule 60(d)(3) motion has not met the
strict standards necessary to demonstrate that a fraud on the court
Id. at 3.
Respondent further asserts that even if these
requirements had been met, Rule 60(d)(3) requires a fraud on the court
brought more than a year after the fraud occurred to have been incapable
of being exposed within the one year window provided by Rule 60(c)(1).
Respondent maintains that there is no evidence of fraud, much less
a fraud that could not have been uncovered earlier.
Petitioner’s motion was not filed within one year of the Court’s
Judgment, as required for claims made pursuant to 60(b)(3).
provides that “on motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order, or proceeding
for” one of six enumerated reasons.
Fed. Rule Civ. P. 60(b).
reason, codified in Rule 60(b)(3), is “fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing
Fed. Rule Civ. P. 60(b)(3).
Here, although Petitioner never
explicitly states that his motion is made under Rule 60(b)(3), he claims
to be entitled to relief due to fraud on the court and “other misconduct.”
(See Rec. Doc. 44 at 1.)
Thus, the Court construes this motion as being
made pursuant to Rule 60(b)(3).
A motion under Rule 60(b)(3) “must be made within a reasonable
time-and . . . no more than a year after the entry of the judgment or
order or the date of the proceeding.”
Fed. R. Civ. P. 60(c)(1).
the Court dismissed Petitioner’s habeas corpus petition with prejudice
on September 26, 2014.
(Rec. Doc. 34.)
Petitioner did not file the
instant motion until August 1, 2016, well outside of the one year allowed
for a 60(b)(3) motion. (Rec. Doc. 44.)
Therefore, Petitioner’s motion
for relief pursuant to Rule 60(b)(3) is time-barred and is denied.
Richard v. Martin, No. 12-1513, 2014 WL 4999452, at *2 (E.D. La. Oct.
The Court also construes Petitioner’s motion as requesting relief
pursuant to Rule 60(d)(3).
Rule 60(d)(3) permits a court to “set aside
a judgment for fraud on the court.”
Fed. Rule Civ. P. 60(d)(3).
on the court is a “narrow concept” and “should embrace only the 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 . . . .” Wilson v. Johns–Manville
Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989).
“[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 fraud on the court.”
Jackson v. Thaler, 348
F. App’x 29, 34 (5th Cir. 2009) (quoting Rozier v. Ford Motor Co., 573
F.2d 1332, 1338 (5th Cir. 1978)).
In addition, “[f]raud upon the court
requires that there was a material subversion of the legal process such
as could not have been exposed within the one-year window” provided by
Id. at 34–35.
Petitioner argues that a fraud was perpetrated on the Court when
the judge at his trial purportedly kept a surveillance video of the
underlying purse snatching offense from the jury. (Rec. Doc. 44 at 8.)
Petitioner asserts that this fraud was continued by the federal courts
because they participated in the “cover up.”
Id. at 1.
Magistrate Judge’s Report and Recommendation, which was adopted by the
Court, states that “the jury  viewed [the] surveillance tape” that
Petitioner argues was never admitted, and that a facility manager where
the video was taken testified as to the authenticity of the tape viewed
by the jury. (Rec. Doc. 26 at 7-8.)
Petitioner’s accusations are simply
not supported by evidence in the record; in fact, they are flatly
contradicted by the record.
Furthermore, the allegation itself fails
to rise to the level of “the most egregious misconduct” necessary to
implicate Rule 60(d)(3).
See Jackson, 348 F. App’x at 35; see also
Williams v. Louisiana, No. 14-00154, 2017 WL 405147, at *4 (M.D. La.
Jan. 30, 2017) (“Plaintiff’s assertions that Defendant intentionally
concealed important documents during discovery, without more, do not
demonstrate that Defendant perpetrated fraud on the Court.”)
circumstances in this case would not have prevented its exposure for so
long” as to make Petitioner’s only recourse available through Rule
IT IS HEREBY ORDERED that Petitioner’s Motion to Motion for Relief
from a Final Judgement, Order, or Proceeding (Rec. Doc. 44) is DENIED.
New Orleans, Louisiana, this 24th day of February, 2017.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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