Thomas v. FCI Berlin, Warden
Filing
64
ORDER denying 59 Motion to Vacate 44 Order. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Thomas
v.
Civil No. 13-cv-259-LM
Opinion No. 2017 DNH 102
Warden, Federal Correctional
Institution, Berlin, New Hampshire
O R D E R
Before the court is petitioner Robert Thomas’s “Emergency
Motion to Vacate” (doc. no. 59) this court’s February 15, 2015,
Order (doc. no. 44) denying Thomas’s 28 U.S.C. § 2241 habeas
petition.
The respondent filed an objection (doc. no. 60) and
Thomas filed a reply (doc. no. 63) to the objection.
Background
Thomas, a federal prisoner housed at the Federal
Correctional Institution in Berlin, New Hampshire, petitioned
this court for a writ of habeas corpus in 2013.
See Doc. No. 1.
In his petition, Thomas asserted that the Bureau of Prisons had
erroneously failed to credit, against his federal sentence, more
than seven years he served in state prison in Illinois pursuant
to a state court criminal conviction.
The respondent moved to dismiss the petition, on the basis
that it was an abuse of the writ, as the claims Thomas asserted
therein had already been litigated and decided in a § 2241
action Thomas had previously brought in the Northern District of
West Virginia (“NDWV”) in 2009, in which Thomas had been denied
relief.
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) (accepting R. & R., 2010 U.S. Dist. LEXIS 34781, 2010 WL
1440465 (N.D.W. Va. Mar. 5, 2010)), aff’d, 403 F. App’x 843 (4th
Cir. 2010) (per curiam).
This court appointed counsel for
Thomas, and after accepting briefing and oral argument on the
motion to dismiss, issued an Order (doc. no. 44) on February 5,
2015, granting the respondent’s motion to dismiss (doc. no. 21)
and denying Thomas’s petition.
The court subsequently denied
Thomas’s motion to reconsider that Order.
See Doc. No. 51.
Thomas appealed this court’s denial of his petition to the
First Circuit Court of Appeals.
See Doc. No. 46.
Circuit affirmed the denial of the petition.
The First
See Thomas v.
Schult, No. 15-1186 (1st Cir. Oct. 27, 2016) (doc. no. 57).
Thomas has now filed a motion (doc. no. 59) asking the
court to vacate its February 5, 2015 Order.
objects.
The respondent
The court construes the motion to vacate (doc. no.
59), supplemented by the factual assertions and argument in
Thomas’s motion for court-appointed counsel (doc. no. 61),1 and
1The
request for counsel was denied on May 24, 2017.
2
in his reply (doc. no. 63) to the respondent’s objection, as a
motion for relief from judgment filed pursuant to Rule 60(b).
The court addresses Thomas’s arguments below.
Discussion
I.
Applicable Legal Standard
“A movant seeking relief from a judgment under Rule 60(b)
must make a threshold showing of ‘timeliness, a meritorious
claim or defense, a lack of unfair prejudice to the opposing
party, and exceptional circumstances.’”
Danielson v. Human, No.
16-2125, 2017 U.S. App. LEXIS 2429, at *1, 2017 WL 544587, at *1
(4th Cir. Feb. 10, 2017) (citation omitted); Bouret-Echevarría
v. Caribbean Aviation Maint. Corp., 784 F.3d 37, 46 (1st Cir.
2015).
A party “must give the trial court reason to believe
that vacating the judgment will not be an empty exercise. . . .
[M]otions for relief under Rule 60(b) are not to be granted
unless the movant can demonstrate a meritorious claim or
defense.”
Bouret-Echevarría, 784 F.3d at 46 (internal quotation
marks and citations omitted).
Rule 60(b) motions “are
‘committed to the court’s sound discretion.’”
Dávila-Álvarez v.
Escuela de Medicina Universidad C. del Caribe, 257 F.3d 58, 63
(1st Cir. 2010) (citation omitted).
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II.
Rule 60(b)(1) & (2)
Motions seeking relief under Rule 60(b)(1) (based on
“excusable neglect”), or Rule 60(b)(2) (based on “newly
discovered evidence”) must be filed “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).
Thomas seeks to vacate
the Order and Judgment entered on February 5, 2015.
year limitations period expired on February 5, 2016.
The oneSee
Rosaura Bldg. Corp. v. Mun’y of Mayaguez, 778 F.3d 55, 64 (1st
Cir. 2015); Gillis v. Chase, No. 1:16-cv-11451-ADB, 2017 U.S.
Dist. LEXIS 63914, at *7, 2017 WL 1535082, at *3 (D. Mass. Apr.
27, 2017), appeal filed, No. 17-1533 (1st Cir. May 24, 2017).
Petitioner filed his Rule 60(b) motion in 2017, more than a year
after the limitations period expired.
His claims asserted under
Rules 60(b)(1) and (2) are therefore time-barred.
III. Rule 60(b)(6)
Rule [60(b)]’s catchall category, subdivision (b)(6),
. . . permits a court to reopen a judgment for “any
other reason that justifies relief.” Rule 60(b) vests
wide discretion in courts, but . . . relief under Rule
60(b)(6) is available only in “extraordinary
circumstances.” In determining whether extraordinary
circumstances are present, a court may consider a wide
range of factors. These may include, in an
appropriate case, “the risk of injustice to the
parties” and “the risk of undermining the public's
confidence in the judicial process.”
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Buck v. Davis, 137 S. Ct. 759, 777–78 (2017) (citations
omitted).
Thomas claims that his motion brings to the court’s
attention new evidence warranting relief from judgment.
What
Thomas identifies here as “new evidence” is a quote from a 1990
Third Circuit case, Barden v. Keohane, 921 F.2d 476 (3d Cir.
1990).
Thomas asserts that the Barden quote was not known to
Thomas, the respondent, the NDWV, or this court, when Thomas’s
NDWV case and this action were litigated and decided.
The 1990 legal decision is not new evidence.
Thomas cited
Barden in his filings in the NDWV, see Deboo, No. 2:09-cv-00134REM-DJJ (N.D.W. Va.) (ECF No. 15, at 6-7), and in his initial
petition in this case, see Pet. (doc. no. 1, at 12).
The NDWV
cited Barden in support of its decision, see Deboo, 2010 U.S.
Dist. LEXIS 34781, at *12, 2010 WL 1440465, at *5, and this
court reviewed that decision prior to denying Thomas’s petition
here.
Thomas has not pointed to any new evidence or information
that warrants vacating the judgment in this case.
Thomas’s motion here consists of the same legal arguments
he has already asserted and litigated in this case.
Thomas
neither identifies any material change in the law since this
court issued its order (and the court is aware of none), nor
points to any legal theory that was not already considered by
the court.
Thomas has not identified any meritorious claim he
5
could raise in this matter.
46.
See Bouret-Echevarría, 784 F.3d at
Further, Thomas has not demonstrated that injustice will
result if his motion is denied.
See Buck, 137 S. Ct. at 777-78.
Accordingly, the motion to vacate (doc. no. 59) is denied.
Conclusion
For the foregoing reasons, the petitioner’s motion to
vacate judgment (doc. no. 59) is DENIED.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
June 5, 2017
cc:
Robert Thomas, pro se
Seth R. Aframe, Esq.
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