Thomas v. FCI Berlin, Warden

Filing 12

ORDER denying 9 Motion to Vacate 6 Order on Report and Recommendation; denying as moot 10 Emergency Motion for Evidentiary Hearing; denying as moot 11 Motion to Expedite. So Ordered by Judge Paul J. Barbadoro.(js)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Thomas
v.

Civil No. 17-cv-571-PB
Opinion No. 2018 DNH 251

Robert Hazelwood, Warden, FCI Berlin

O R D E R

Petitioner, Robert Thomas, a federal prisoner presently
incarcerated at the Federal Correctional Institution, in Berlin,
New Hampshire, has filed three post-judgment motions (Doc. Nos.
9-11).

In the first such motion (Doc. No. 9), which Thomas has

identified as an “‘Emergency Motion to Vacate’ (and) Appoint
Counsel,” seeking relief under Rule 60(b)(2) of the Federal
Rules of Civil Procedure, Thomas asks this court to vacate its
May 15, 2018 Order (Doc. No. 6) (“May 15 Order”) approving the
magistrate judge’s May 7, 2018 Report and Recommendation (Doc.
No. 4) (“May 7 R&R”) and dismissing this action.

In the other

two motions (Doc. Nos. 10, 11), Thomas seeks an evidentiary
hearing and expedited ruling.
Background
Thomas filed this action in November 2017, seeking a writ
of habeas corpus pursuant to 28 U.S.C. § 2241.

The court

dismissed Thomas’s § 2241 petition (Doc. No. 1), without
prejudice to Thomas’s ability to assert his claims in a court of

competent jurisdiction, finding that this court lacked subject
matter jurisdiction over the petition.
After judgment entered in this case, Thomas filed a motion
(Doc. No. 8) asking the court to either allow him to amend his
petition, or to vacate the May 7 R&R and May 15 Order.

The

court denied Thomas’s motion, stating: “The motion to amend does
not address the fact that [] the court lacks subject matter
jurisdiction.”

May 22, 2018 Order.

In his instant motion, Thomas seeks to vacate the judgment
in this case to enable him to assert new claims for relief from
his conviction and sentence.

Specifically, Thomas alleges that:

1) he is entitled to relief under a new rule of federal
constitutional law established by the Supreme Court’s recent
decision in McCoy v. Louisiana, 138 S. Ct. 1500 (2018); and 2)
the guilty plea underlying his present incarceration should be
vacated because the federal Bureau of Prisons’ wrongful
calculation of his sentence constitutes a breach of his original
plea agreement and thus violates Thomas’s Fifth Amendment right
to due process.
Discussion
Thomas brings his motion under Rule 60(b)(2), which
provides relief for litigants who present “newly discovered
evidence.”

Fed. R. Civ. P. 60(b)(2).

Construed liberally,

however, the motion is more appropriately characterized as

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arising under Rule 60(b)(6), the rule’s catch-all provision
which allows courts to grant relief from a judgment for “any
reason that justifies relief” not otherwise specified in Rule
60(b)(1)-(5).
“Rule 60(b) allows a party to seek relief from a final
judgment, and request reopening of his case, under a limited set
of circumstances.”
(2005).

Gonzalez v. Crosby, 545 U.S. 524, 528

However, “[a] Rule 60(b) motion should be treated as a

second or successive § 2255 motion ‘if it in substance or effect
asserts or reasserts a federal basis for relief from the
petitioner’s underlying conviction.’”

United States v.

McKinney, No. 18-3099, ___ F. App’x ___, 2018 U.S. App. LEXIS
22024, at *3, 2018 WL 3769223, at * 2 (10th Cir. Aug. 8, 2018)
(citation omitted); see also Gonzalez, 545 U.S. at 532 (where “a
Rule 60(b) motion advances one or more ‘claims,’ . . . seek[ing]
to add a new ground for relief,” it should be treated as an
application for habeas relief).
Because Thomas seeks to add two new federal grounds for
relief to this action, his motion seeks relief available, if at
all, in a motion filed under 28 U.S.C. § 2255 in the Northern
District of Illinois, where Thomas was convicted and sentenced.
Thomas’s motion for post-judgment relief (Doc. No. 9) is
therefore denied.

The denial of Thomas’s motion renders his

requests for the appointment of counsel (Doc. No. 9), for an

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evidentiary hearing (Doc. No. 10), and for an expedited ruling
(Doc. No. 11), moot.

Those motions are denied on that basis.

Abusive Litigation Practices
This case, and the instant motions, are the most recent of
Thomas’s numerous challenges to his 2001 conviction and
sentence.

Thomas has filed this action and Thomas v. Schult,

No. 13-cv-259-LM (D.N.H.) (“Schult”) in the District of New
Hampshire, seeking relief from his conviction and sentence.
Both actions were initiated as § 2241 petitions which were
ultimately dismissed.

In both cases, Thomas filed repetitive

requests for reconsideration and/or to vacate the judgment of
dismissal.

In each instance, the court denied Thomas’s request.

A review of PACER indicates that, in addition to his cases
in this court, Thomas has filed repeated challenges to his
conviction and sentence in the Northern District of Illinois,
the Northern District of West Virginia, and in the First,
Fourth, and Seventh Circuit Courts of Appeals.

The Seventh

Circuit has twice sanctioned Thomas in response to his
repetitive and continued filing of frivolous challenges to his
conviction and sentence, and Thomas remains subject to that
Court’s most recent sanction.

See Thomas v. United States, No.

16-3064 (7th Cir. Feb. 23, 2017) (ECF No. 10) (Order discussing
Thomas’s litigation history, imposing $5000 fine, and barring

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Thomas from filing any civil suit in the courts of the Seventh
Circuit until fine is paid in full).
In both this case and in Schult, the court has explained to
Thomas a number of times that this court is not the appropriate
venue for Thomas to assert a new challenge to his conviction or
sentence which is appropriately asserted under § 2255.

His

repetitive efforts to bring such claims in this court amount to
frivolous and vexatious litigation.

Thomas is warned that any

further efforts to bring such claims in this court may result in
the court imposing sanctions which may include, among other
things, restrictions on Thomas’s ability to bring litigation in
this court in the future.
Conclusion
For the foregoing reasons, the court now directs as
follows:
1.

Thomas’s motion (Doc. No. 9) to vacate this

court’s Order dismissing his case is DENIED, without
prejudice to his ability to seek relief in a court of
appropriate jurisdiction.
2.

Thomas’s motions for an evidentiary hearing (Doc.

No. 10), and his motion to expedite (Doc. No. 11) are
DENIED as moot.

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3.

Thomas is warned that any further efforts to

challenge the validity of his conviction and sentence in
this court may result in the court imposing sanctions.
SO ORDERED.
/s/ Paul Barbadoro
Paul Barbadoro
United States District Judge
December 14, 2018
cc:

Robert Thomas, pro se

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