Hansen v. Houston

Filing 28

MEMORANDUM AND ORDER that Petitioner's Motion to Reopen Case 26 , liberally construed as a Motion for Relief Under Rule 60(b), is denied. Petitioner shall have the opportunity to submit an amended petition that only presents exhausted claims. Petitioner's Motion to Rule on State Remedies 27 is denied. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JERRY HANSEN,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.

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CASE NO. 4:12CV3048

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner’s Motion to Reopen, which the court
liberally construes as a Motion for Relief Under Federal Rule of Civil Procedure 60(b).
(Filing No. 26.)
On December 5, 2012, the court dismissed Petitioner’s Petition for Writ of Habeas
Corpus (“Petition”) without prejudice and entered Judgment against him because he failed
to exhaust state court remedies before filing his Petition. (Filing Nos. 24 and 25.) Liberally
construed, Petitioned seeks relief from the court’s Judgment pursuant to Fed. R. Civ. Pro.
60(b)(6). (Filing No. 26.) Rule 60(b)(6) “grants federal courts broad authority to relieve a
party from a final judgment ‘upon such terms as are just,’ provided that the motion is made
within a reasonable time and is not premised on one of the grounds for relief enumerated
in clauses (b)(1) through (b)(5).” Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847,
863 (1988). However, “[r]elief is available under Rule 60(b)(6) only where exceptional
circumstances have denied the moving party a full and fair opportunity to litigate his claim
and have prevented the moving party from receiving adequate redress.” Harley v. Zoesch,
413 F.3d 866, 871 (8th Cir. 2005).
The court has carefully reviewed Petitioner’s Motion. Petitioner argues that he
exhausted his state court remedies before the court entered its December 5, 2012,

Memorandum and Order and Judgment. (Filing No. 26.) However, no authenticated state
court records show that Petitioner has done so. Thus, the court will deny Petitioner’s
Motion to Reopen.
However, on the court’s own motion, Petitioner shall have the opportunity to submit
an amended petition that only presents exhausted claims. If Petitioner chooses to amend
his petition to assert only exhausted claims, he must do so no later than 10 days from the
date of this order. Petitioner shall accompany any amended petition with a motion to
reopen that clearly identifies which claims have been exhausted in state court.
IT IS THEREFORE ORDERED that:
1.

Petitioner’s Motion to Reopen Case (Filing No. 26), liberally construed as a
Motion for Relief Under Rule 60(b), is denied;

2.

Petitioner shall have the opportunity to submit an amended petition that only
presents exhausted claims. If Petitioner chooses to amend his petition to
assert only exhausted claims, he must do so no later than 10 days from the
date of this order. Petitioner shall accompany any amended petition with a
motion to reopen that clearly identifies which claims have been exhausted
in state court; and

3.

Petitioner’s Motion to Rule on State Remedies (Filing No. 27) is denied.

DATED this 11th day of February, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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