Thomas v. FCI Berlin, Warden

Filing 142

ORDER RE: 137 EMERGENCY MOTION to Vacate. So Ordered by Chief Judge Landya B. McCafferty. (bt)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Thomas
v.

Civil No. 13-cv-259-LM
Opinion No. 2022 DNH 042 P

Warden, Federal Correctional
Institution, Berlin, New Hampshire
ORDER
Petitioner Robert Thomas is a federal prisoner currently incarcerated at the
Federal Correctional Institution in Berlin, New Hampshire. Before the court is
Thomas’s motion (doc. no. 137) for relief from the judgment of dismissal in this case.
In his motion, Thomas asserts that new evidence he has submitted to the court
warrants reopening this case and considering the merits of his claims. The
allegedly new evidence includes, among other things, a federal Bureau of Prisons
(“BOP”) data sheet showing that in April 2021 the BOP updated Thomas’s sentence
calculation; two affidavits by the attorney who represented Thomas at his statecourt sentencing in 2001; an affidavit by the attorney who represented Thomas at
his state-court resentencing in 2008; and a declaration by a BOP Management
Analyst involved in computing sentences. The court now issues a briefing schedule
directing the parties to fully brief the issues. The court also highlights certain
issues which the court determines require further exploration.

PROCEDURAL HISTORY1
I.

Thomas’s State and Federal Sentences
Thomas was arrested in Illinois on state armed robbery charges on October 1,

2000. He was detained pretrial at the Cook County Jail in Chicago.
On March 21, 2001, Thomas was “borrowed” by the United States Marshals
Service pursuant to a writ of habeas corpus ad prosequendum2 and detained at a
federal detention facility to answer federal drug charges (unrelated to the state
charges). Doc. no. 129-1 at 10; see United States v. Thomas, No. 1:01-cr-00003-9
(N.D. Ill.). On September 14, 2001, the federal court sentenced Thomas to 360
months of imprisonment on his federal charges. See id. (ECF No. 243).3 Thomas
was then returned to the Cook County Jail to await the resolution of his state
charges.
Thomas asserts that on October 19, 2001, he pleaded guilty to 13 state
offenses (related to the armed robbery) in the Cook County Circuit Court. That

This is not an exhaustive review of Thomas’s post-conviction litigation. The
proceedings described and discussed in this order are those relevant to the issues
presently before the court.
1

A writ of habeas corpus ad prosequendum “is ‘issued directly by a court of
the jurisdiction where an indictment, information, or complaint has been lodged
against the prisoner.’ It operates as ‘a court order requesting the prisoner’s
appearance to answer charges in the summoning jurisdiction.’” United States v.
Kelly, 661 F.3d 682, 686 (1st Cir. 2011) (citations omitted).
2

Thomas’s sentence was later reduced to 324 months pursuant to a United
States Sentencing Guidelines Drug Quantity Decision issued November 1, 2014.
See Mar. 12, 2021 BOP Sentencing Monitoring Computation Data sheet (doc. no.
121 at 11).
3

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court then sentenced Thomas to concurrent 20-year prison terms on those charges.
See People v. Thomas, Nos. 00 CR 26615 et al., (Ill. 1st Jud. Dist., Cook Cnty. Cir.
Ct.) (doc. no. 1-1 at 1). After confirming that the 20-year sentence was agreed to by
the parties, the court ordered “Robert Thomas [] to serve his incarceration in the
above-captioned matters in the facility set forth by the United States Bureau of
Prisons concurrent with his federal case.” Oct. 19, 2019, Sentencing Hr’g Tr.
(excerpt), State Criminal Case (doc. no. 1-1 at 24-26).
At the time of Thomas’s state-court sentencing, the State and Thomas had
entered into an agreement as to the length of his sentence, and further agreed that
his state sentence would run concurrently with his federal sentence and would be
served in a BOP facility. Attorney Thomas Maroney represented Thomas at the
October 19, 2001 sentencing hearing. In an affidavit Thomas filed in this court,
Attorney Maroney asserted that at the time of Thomas’s state-court sentencing, the
terms of Thomas’s state sentence, including the portions related to his federal
sentence, “had been approved by Assistant United States Attorney Theodore
Chung.” May 1, 2006 Aff. of Thomas J. Maroney (“Maroney Aff. I”) (doc. no. 76-1).
In a second affidavit, Attorney Maroney stated:
An agreement was reached between the parties being the PEOPLE OF
THE STATE OF ILLINOIS and ROBERT THOMAS wherein he was to
be sentenced to a total of twenty (20) years in the Illinois Department
of Corrections by the Honorable Judge Camille Willis. This time was
to be served concurrently with the thirty (30) years in the federal
penitentiary ([BOP]) to which ROBERT THOMAS had already been
sentenced. The PEOPLE OF THE STATE OF ILLINOIS also agreed
to release the said ROBERT THOMAS to the federal prison system so
that he may do his entire incarceration term within the [BOP]. There

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had been an agreement to this proviso with the consent of the
Assistant United States Attorney, Theodore Chung.
Aff. of Thomas J. Maroney (“Maroney Aff. II”) (doc. no. 87-1). Accordingly, at the
time he entered his guilty pleas, there is evidence that Thomas believed that the
State of Illinois, by agreeing to the terms of the sentence imposed, and for purposes
of facilitating the execution of those terms, had waived and relinquished its primary
jurisdiction over him to the federal government.4
After his state-court sentencing, Thomas remained in an Illinois Department
of Corrections (“Illinois DOC”) facility until November 5, 2001, when the United
States Marshals Service assumed custody of Thomas and transported him to a
federal facility, without having first obtained the appropriate writ. Shortly
thereafter, the Illinois DOC lodged a detainer with the BOP, to ensure that if
released prior to the expiration of his state sentence, Thomas would be returned to
the Illinois DOC to complete his state sentence. See Jan. 31, 2002 Illinois DOC
Detainer (doc. no. 1-1 at 6).
On April 11, 2002, BOP authorities returned Thomas to the Illinois DOC to
finish serving his state sentence, characterizing Thomas’s November 5, 2001
transfer to federal custody as a mistake, based on the BOP’s determination that
Illinois had not waived its primary jurisdiction over Thomas. See Dec. 23, 2009
Decl. of Patricia Kitka (“Kitka Decl.”) (doc. no. 129-1 at 10). Once he was returned

The State of Illinois obtained primary jurisdiction over Thomas by virtue of
having arrested him on state charges prior to his arrest on federal charges.
4

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to the Illinois DOC, Thomas requested that the Illinois DOC execute his state
sentence in a manner that would allow him to serve his federal and state sentences
concurrently. On or after August 29, 2002, Thomas received the following
correspondence from an Illinois DOC official:
This is in response to your correspondence received August 19, 2002, in
which you requested to be paroled back to the Federal System so you
can start your Federal Sentence. This request was reviewed by the
Chief Records Office Supervisor and the Department of Corrections
Legal Department, and it was determined that you should serve your
Illinois sentence first.
Dec. 24, 2002 Pet., Ex. 4 (ECF No. 1, at 11), United States ex. rel. Thomas v. Ill.
Dep’t of Corr., No. 02 C 9422 (N.D. Ill.). In 2002, Thomas filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254 in the Northern District of Illinois. In its
order denying the § 2254 petition, the Illinois federal court stated:
Robert Earl Thomas brings this pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. On October 26, 2001, Thomas
was convicted of one count of armed robbery and sentenced to 20 years.
The judge agreed with the state’s attorney and the public defender that
if Thomas pleaded to the charge, his sentence would run concurrent
with his federal sentence and he would be released to federal officials
to serve his time. It appears from the exhibits Thomas attached to his
petition that he was sent to a federal prison in Louisiana. However,
federal authorities were upset by the state judge’s language on the
mittimus “Defendant to serve sentence in Federal penitentiary” and
returned Thomas to the [Illinois DOC]. The judge corrected the
mittimus on August 8, 2002, by striking the phrase “Defendant to
serve sentence in Federal penitentiary.” . . . Thomas then asked the
[Illinois] DOC to parole him back to the federal system so he could
start his federal sentence. After review, it was determined that
Thomas should serve his Illinois sentence first. . . . Thomas seeks to
have his state sentence set aside and to be released to the [BOP] and to
get credit for the time he spent in the state system . . . .

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Feb. 26, 2003 Order, id. (ECF No. 6). The court denied Thomas’s § 2254 petition,
stating:
It appears from the documentation that Thomas’s sentences are being
served concurrently. It appears that the thrust of Thomas’s petition is
his dismay that he is serving his sentences in the [Illinois] DOC rather
than in the BOP . . . Because Thomas has no constitutional right to
serve his sentences in a particular facility or a constitutional right to
choose federal custody rather than state custody, there is no basis for
his petition.
Id.5
Unable to obtain the relief he was seeking from either the BOP, the Illinois
DOC, or the Northern District of Illinois, Thomas filed a motion for post-judgment
relief in his state criminal cases in Illinois state court. On November 18, 2008, by
agreement of the parties, the state court vacated all thirteen convictions and
sentences imposed in October 2001. The same day, Thomas again pleaded guilty to
those offenses, and the court resentenced him to eleven ten-year sentences and two
fifteen-year sentences, all to run concurrently with each other, and with his federal
sentence. The court granted Thomas 2,962 days credit for the time he had spent in
custody since October 1, 2001. The following day, November 19, 2008, Illinois
paroled Thomas from his state sentence. He was then returned to federal custody
to serve his federal sentence.

It appears the documentation to which the Illinois federal court refers in its
order was correspondence between Assistant Cook County Public Defender Chris
Anderson and Thomas regarding information Attorney Anderson received from the
United States Marshals Service concerning the wording of Thomas’s state sentence.
See Dec. 24, 2002 Pet., Ex. 2, United States ex. rel. Thomas v. Ill. Dep’t of Corr., No.
02 C 9422 (N.D. Ill.) (ECF No. 1, at 9-10).
5

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Once Thomas was returned to federal custody, the BOP deemed his sentence
to have commenced on November 19, 2008, and declined to give him credit against
his federal sentence for any of the time that he had been incarcerated since his
federal sentencing hearing. The statute outlining credit for prior custody, 18 U.S.C.
§ 3585(b), states in pertinent part:
A defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior to
the date the sentence commences –
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was
arrested after the commission of the offense for which the sentence was
imposed;
that has not been credited against another sentence.
In the BOP’s view, all the time Thomas had served until November 19, 2008 had
been credited toward his state sentence.

II.

28 U.S.C. § 2241 Proceedings
A.

Northern District of West Virginia

On November 13, 2009, while incarcerated at the Federal Correctional
Institution in Gilmer, West Virginia, Thomas filed a petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2241 in the Northern District of West Virginia,
challenging the BOP’s calculation of his sentence and refusal to credit his time in
Illinois DOC custody against his federal sentence, or to grant him a nunc pro tunc
designation. See Nov. 13, 2009 Pet. (ECF No. 1), Thomas v. Deboo, No. 2:09cv134
(ECF No. 1). Specifically, Thomas alleged that the State of Illinois had waived and
relinquished primary jurisdiction over him at the time of his state-court sentencing,

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and that, therefore, his designation to a federal facility in 2001 was not a mistake.
He further argued that his return to the Illinois DOC in 2002 was erroneous, and
resulted in his not receiving credit against his federal sentence for time he had
served prior to his November 19, 2008 return to federal custody. Finally, Thomas
argued that he was improperly made to serve his federal sentence in installments.
See id.
On April 8, 2010, the Northern District of West Virginia granted the
respondent’s motion to dismiss or, in the alternative, for summary judgment, and
denied Thomas’s habeas petition. See Thomas v. Deboo, No. 2:09cv134, 2010 U.S.
Dist. LEXIS 34603, at *2, 2010 WL 1440693, at *1 (N.D.W. Va. Apr. 8, 2010), aff’d,
403 F. App’x 843 (4th Cir. Nov. 30, 2010) (per curiam). In its order, the court
explicitly found that whatever the intention of the parties and court at the time of
Thomas’s state-court sentencing, the State of Illinois did not expressly or
affirmatively waive its primary jurisdiction over Thomas at any time until it
paroled Thomas from his state sentence in November 2008. The court dismissed
Thomas’s petition. See id.

B.

District of New Hampshire

In 2013, Thomas filed this action, asserting the same claims raised in his
2009 habeas petition in federal court in West Virginia and in his administrative
grievances to the BOP. Specifically, Thomas alleged that the BOP abused its
discretion, and violated his due process rights, by failing to recalculate his sentence

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to give him credit for the time he served in the Illinois DOC, and failing to grant
him a nunc pro tunc designation to the Illinois DOC.
Thomas also argued that his federal sentence should have commenced when
federal officials took him into custody without the appropriate writ on November 5,
2001, and ran until he was returned to the Illinois DOC on April 11, 2002, and he
has thus been forced to serve his sentence in installments, in violation of “a common
law rule against ‘installment punishment’ that prohibits federal officials from
delaying the expiration of a sentence either by delaying commencement or by
releasing a prisoner and then reimprisoning him.” Commodore v. Walton, No. 13444-CJP, 2014 U.S. Dist. LEXIS 4575, at *13-*14, 2014 WL 128299, at *5 (S.D. Ill.
Jan. 14, 2014).
This court granted the respondent’s motion to dismiss Thomas’s habeas
petition on the basis that Thomas’s filing of this case constituted an abuse of the
writ. See Feb. 5, 2015 Order (doc. no. 44); see also Mar. 18, 2015 Order (doc. no. 51)
(denying Thomas’s motion to reconsider the February 5, 2015 Order). The First
Circuit affirmed the dismissal of the case but found that the § 2241 petition was
“‘successive’ rather than abusive,” “[b]ecause the claims presented in Thomas’s 2013
habeas petition had already been presented in his 2009 petition and denied on the
merits by a West Virginia District Court.” Thomas v. Schult, No. 15-1186 (1st Cir.
Oct. 27, 2016) (doc. no. 57).
Since Thomas’s case was dismissed, he has filed numerous post-judgment
motions seeking to vacate the dismissal of this matter and have the court enter

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judgment in his favor on the merits of his claims. The court addresses a number of
those motions in a separate order also issued on today’s date.

BRIEFING SCHEDULE
Thomas has filed a Rule 60(b) motion for relief from the judgment of
dismissal in this case based on newly discovered evidence (doc. no. 137). In a
separate order issued today, the court has construed the factual and legal assertions
in document numbers 123-125, 127-130, 132-136, 139, and 140, to be addenda to
that motion. Accordingly, those documents will be considered, together, to be
Thomas’s Rule 60(b) motion for all purposes. Given that these filings reference
various documents which Thomas alleges constitute “newly discovered evidence”
under Rule 60(b), the court directs Thomas to file an amended motion by April 25,
2022, listing exactly what documents he alleges are “newly discovered.” For each
document, Thomas should allege why he did not have—and could not have had—
access to it within 28 days after the Northern District of West Virginia dismissed
his § 2241 petition. See Fed. R. Civ. P. 60(b)(2) (“newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a new
trial under Rule 59(b)”). The court directs the respondent to file an objection or
other response to Thomas’s Rule 60(b) motion by May 23, 2022. Thomas may file a
reply to the respondent’s objection by June 27, 2022. The respondent may file a
surreply by July 11, 2022.

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If any party seeks to extend any deadline established by this order, that
party must file a motion no later than the date of the deadline sought to be
extended, demonstrating good cause for the request. As Thomas has already set
forth extensive argument in his Rule 60(b) documents, he should not repeat
arguments which are already before the court but should limit his filing to respond
to the facts and arguments asserted in the respondent’s objection and to the issues
identified by the court in this order.
In this order, the court highlights certain issues which the parties should
address in their briefings. The parties may, however, include additional issues
beyond what the court outlines here. Additionally, if either party takes issue with
the facts the court has related in this order, they should raise those issues in their
briefings.

ISSUES TO BE BRIEFED
I.

Standard of Review
In their briefs, the parties should be mindful of the pertinent standard of

review applicable to Thomas’s Rule 60(b) motion. To succeed on a motion for relief
from judgment under Rule 60(b), a movant must do “more than merely cast[] doubt
on the correctness of the underlying judgment.” Fisher v. Kadant, Inc., 589 F.3d
505, 512–13 (1st Cir. 2009).
Rule 60(b) relief is “extraordinary in nature” and, thus, “motions
invoking that rule should be granted sparingly.” A party seeking relief
under Rule 60(b) must demonstrate “at a bare minimum, that his
motion is timely; that exceptional circumstances exist, favoring

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extraordinary relief; that if the judgment is set aside, he has the right
stuff to mount a potentially meritorious claim or defense; and that no
unfair prejudice will accrue to the opposing parties should the motion
be granted.”
Id.
In addition to meeting the Rule 60(b) standard, Thomas must demonstrate
that he can overcome the successive petition bar. “[A] successive § 2241 petition is
subject to dismissal for abuse of the writ when the same legal claims addressed in a
prior petition are presented again.” Ortiz-Lopez v. Fed. Bureau of Prisons, Dir., 830
F. App’x 127, 131 (5th Cir. 2020). “Additionally, a second petition that raises a
claim that could have been raised in a first petition may be deemed an abuse of the
writ unless the petitioner can show cause and prejudice for his failure to raise the
claim earlier.” Id. (citing McClesky v. Zant, 499 U.S. 467, 493-95 (1991)). The court
can, however, consider the merits of a claim raised in a previous habeas petition if
the failure to raise the claim at the time of the previous habeas proceeding was
caused by the unavailability of the legal or factual basis for the claim, where
petitioner can show “actual prejudice resulting from the errors of which he
complains,” or that a “fundamental miscarriage of justice would result from a
failure to entertain the claim,” McCleskey, 499 U.S. at 494-95.

II.

Relinquishment/Waiver of Primary Jurisdiction
This court has not yet considered the merits of Thomas’s claim that Illinois

waived or relinquished its primary jurisdiction over him when they released him to
the United States Marshals Service on November 5, 2001, without the appropriate

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writ. The federal court in West Virginia found that Illinois did not relinquish
primary jurisdiction over Thomas because “the state did not expressly relinquish[]
primary jurisdiction of the petition[er] until November 19, 2008, when he was
paroled from his state sentence. Prior to that date, there had been no release to
parole, grant of bail, dismissal of the charges or any written waiver of primary
jurisdiction.” Thomas v. Deboo, No. 2:09cv134, 2010 WL 1440465, at *4 (N.D.W. Va.
Mar. 8, 2010). While the West Virginia federal court found that Illinois did not
relinquish its primary jurisdiction at that time, Thomas has provided additional
evidence to this court which may suggest otherwise.
Specifically, Thomas has provided affidavits from Attorney Maroney stating
that the State of Illinois agreed to release Thomas to federal authorities so he could
commence his federal sentence before his state sentence was discharged. See
Maroney Aff. II. Thomas has also provided an email written by Torrie Corbin, a
Cook County State’s Attorney’s Office supervisor, in which she confirms that the
sentence, as set forth in the Cook County court’s October 19, 2001 sentencing order
(doc. no. 1-1, 1), “accurately reflects the agreement of the parties and the intentions
of court as it relates to Mr. Thomas’s sentence.” Torrie Corbin Email (doc. no. 95-1
at 9).
Thomas also urges the court to apply the standard and reasoning in Pope v.
Perdue, 889 F.3d 410 (7th Cir. 2018) to his primary jurisdiction claims. Pope sets
forth a different standard for evaluating whether primary jurisdiction has been
relinquished than that applied by the Northern District of West Virginia in

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dismissing Thomas’s first habeas petition. In Pope, the Seventh Circuit states, with
regard to the relinquishment of primary jurisdiction:
Because the decision to relinquish primary custody rests solely with
the sovereign exercising priority, we look to the intent of that sovereign
to determine if it has relinquished primary custody through a transfer.
In the absence of evidence that the transferring sovereign intended to
maintain custody, we presume that the sovereign intended to
relinquish it.
Id. at 415-16.
In their briefs, the parties should address whether the court should consider
the merits of Thomas’s primary jurisdiction claim or find that the claim fails to
warrant reopening of this matter. Further, the parties should address whether, if
the court were to consider the primary jurisdiction claim on its merits, what
standard should apply and what facts in the record support that party’s position.
Additionally, the parties should identify facts in the record to support their
positions.

III.

Installment Sentences
Thomas claims that he has been improperly forced to serve his federal

sentence in installments. In their briefs, the parties should address whether the
court should consider the merits of Thomas’s installment sentence claim or should
find that the claim does not warrant reopening of this matter. Further, the parties
should address the merits of the installment sentence claim in the event the court
decides to consider the merits of the claim. The parties should identify facts in the
record support their positions.

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IV.

BOP’s 2021 Grant of 178 Days of Jail Credit
Thomas has submitted Sentence Monitoring Computation Data sheets

prepared by the BOP, indicating that on April 6, 2021, the BOP updated Thomas’s
sentence calculation to grant him 178 days of jail credit for the time he was
incarcerated in the Illinois DOC between May 25, 2008 and November 18, 2008, on
the basis that that jail credit was for “over served time in state [prison].” Doc. no.
129, at 5. The record does not make clear how the BOP arrived at the conclusion
that Thomas had “over served” his state sentence. Instead, the record indicates
that Thomas served approximately eight years of a fifteen-year sentence, and was
then paroled from that sentence on November 19, 2008. Further, the BOP has
consistently told Thomas that he would not receive credit for any of the time he
spent in state custody, because all of that time was credited to his state sentence.
See, e.g., Kitka Decl. (doc. no. 129-1 at 11) (stating that the BOP did not grant
Thomas any prior custody credit because the Illinois DOC gave him credit toward
his state sentence from the date of his arrest until the date he was paroled to his
federal sentence).
The parties should attempt to identify the basis for the April 2021 grant of
jail credit to Thomas. Additionally, the parties should identify any specific dates
during Thomas’s incarceration, prior to November 19, 2008, not previously credited
toward his state sentence. The parties should then brief what, if any, impact the
credit of 178 days, and the reasons the BOP granted Thomas that credit, has on the

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claims in this case. The parties should identify facts in the record that support
their positions.

V.

Whether the BOP is Bound by AUSA Chung’s Actions
Thomas has filed a document indicating that Assistant United States

Attorney (“AUSA”) Chung, who prosecuted Thomas on his federal offenses, agreed
and consented to Thomas’s state sentence, including the terms of that sentence
directing that Thomas serve his state sentence concurrently with his federal
sentence, at a federal facility. See Maroney Aff. II (doc. no. 87-1). The record,
however, is not clear as to whether AUSA Chung actually entered into a potentially
enforceable agreement with Thomas to allow his state sentence to run concurrently
and to allow Thomas to serve his sentence in a federal facility, upon which Thomas
relied in deciding to plead guilty in state court.
“As a general rule, fundamental fairness means that the courts will enforce
promises made during the plea bargaining process that induce a criminal defendant
to waive his constitutional rights and plead guilty.” Staten v. Neal, 880 F.2d 962,
963 (7th Cir. 1989) (citing Santobello v. New York, 404 U.S. 257, 262 (1971)).
Courts have found that the BOP is bound by the promises made by a federal
prosecutor in a plea agreement. See United States v. Riley, No. 08-81-DCR, 2013
U.S. Dist. LEXIS 51441, at *21 n.6, 2013 WL 1332450, at *7 n.6 (E.D. Ky. Mar. 11,
2013); United States v. Flowers, 934 F. Supp. 853, 855-56 (E.D. Mich. 1996)), R&R

16

approved, 2013 U.S. Dist. LEXIS 45445, at *40-*41, 2013 WL 1320769, at *13 (E.D.
Ky. Mar. 29, 2013).
In their briefs, the parties should address whether the court should consider
this issue on its merits or should find that the claim does not warrant reopening
this matter. Further, the parties should address the merits of the issue, in the
event the court decides to consider the merits of the claim. The parties should
identify facts in the record that support their positions.

CONCLUSION
For the foregoing reasons, the parties are directed to submit briefing to the
court in accordance with this order, as follows:
•

Thomas shall file an amended motion by April 25, 2022. The amended
motion shall identify specifically all the documents Thomas asserts are
“newly discovered evidence” under Federal Rule of Civil Procedure 60(b).
Further, for each document that Thomas alleges is “newly discovered,”
Thomas should allege why he did not have—and could not have had—access
to it within 28 days after the Northern District of West Virginia dismissed his
§ 2241 petition. See Fed. R. Civ. P. 60(b)(2) (“newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for
a new trial under Rule 59(b)”).

•

the respondent shall file his objection or other response to the Rule 60(b)
motion (doc. no. 137) by May 23, 2022.

•

Thomas may file his reply to that objection by June 27, 2022.

•

the respondent may then surreply by July 11, 2022.

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The parties may seek extensions to these deadlines in a motion filed by the deadline
of which extension is sought, demonstrating good cause for the request.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
March 30, 2022
cc:

Robert Thomas, pro se
Seth R. Aframe, Esq.

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