Gause v. Cooper

Filing 83

ORDER denying 82 Motion seeking relief from judgment pursuant to Federal Rule of Civil Procedure 60.IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of appealability. Signed by District Judge Frank D. Whitney on 3/30/21. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-631-FDW
WALTER TIMOTHY GAUSE,
Petitioner,
v.

FRANK L. PERRY,
Respondent.

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ORDER

THIS MATTER is before the Court upon Petitioner’s Motion filed on May 21, 2020 (Doc.
82), which this Court construes as a motion seeking relief from judgment pursuant to Federal Rule
of Civil Procedure 60.
I.

PROCEDURAL BACKGROUND
Petitioner is a prisoner of the State of North Carolina, who was convicted on February 20,

2014 in Mecklenburg County Superior Court of robbery with a dangerous weapon, assault with a
deadly weapon inflicting serious injury, and conspiracy to commit robbery with a dangerous
weapon. State v. Gause, 772 S.E.2d 265, 2015 WL 1529828, *1-2 (N.C. Ct. App.
2015)(unpublished). Petitioner was sentenced to consecutive active sentences of 146-185 months
imprisonment for the robbery and conspiracy convictions, and 59-80 months for the assault
conviction. Id. at *2.
Following his pursuit of post-conviction relief in state court, Petitioner filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 23, 2016, alleging the State
violated his right to a speedy trial and that the trial court erred in denying his motion to dismiss

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based upon the pre-trial destruction of physical evidence. (Doc. 1).

The Court granted

Respondent’s Motion for Summary Judgment, denying and dismissing the Petition for Writ of
Habeas Corpus. (Doc. 49). Petitioner filed a Notice of Appeal, which the Fourth Circuit Court of
Appeals dismissed. Gause v. Perry, Appeal No. 17-6249 (4th Cir. September 20, 2017)(Docs. 70,
72).
Petitioner then filed six motions for relief from judgment pursuant to Federal Rule of Civil
Procedure 60. (Docs. 73-78). This Court entered an Order on February 12, 2018 dismissing the
motions because they were successive and unauthorized habeas petitions and were not true Rule
60(b) motions. (Doc. 80).
Petitioner now moves this Court once again for relief from judgment pursuant to Rule
60(d)(3). (Doc. 82).
II.

LEGAL STANDARD
Petitioner’s motion purports to seek relief under Federal Rule of Civil Procedure 60(d)(3).

Federal Rule of Civil Procedure 60(b) permits a court to correct orders and provide relief from
judgment under several circumstances. However, a Rule 60(b) motion must be made within a
“reasonable time,” and in some cases “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).
Rule 60(d)(3), on the other hand, provides a “savings clause” and permits a court to
exercise its inherent equitable powers to set aside a final judgment after one year if the movant
provides clear and convincing evidence of “fraud on the court.” Fox ex rel. Fox v. Elk Run Coal
Co., 739 F.3d 131, 136 (4th Cir. 2014). However, fraud on the court requires that a litigant show
more than ordinary fraud by the opposing party. Id. Application of this rule is generally “limited
to situations such as ‘bribery of a judge or juror, or improper influence exerted on the court by an

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attorney, in which the integrity of the court and its ability to function impartially is directed or
impinged.’” Id. (quoting Great Coastal Express, Inc. v. Intl. Brotherhood of Teamsters, 675 F.2d
1349, 1356 (4th Cir. 1982)). The litigant must demonstrate that the fraud “not only ... involve[s]
an intentional plot to deceive the judiciary, but it must also touch on the public interest in a way
that fraud between individual parties generally does not.” Id.
III.

DISCUSSION
Petitioner alleges that state officials committed constitutional violations and fraud upon the

courts, and that the State’s evidence against him was inadmissible and fabricated to obtain his
conviction by deliberate deception. Petitioner accuses the State of manufacturing and/or tampering
with evidence in order to secure his conviction by fraud. Petitioner also attempts to raise claims
against his appellate counsel for inadequate representation and collusion with the state officials,
as well as against trial counsel for failure to object to evidence admitted at trial.
Petitioner’s arguments are conclusory and unsupported by sufficient allegations of fact.
Petitioner’s motion appears to be an attempt to relitigate his previous challenges to his conviction
which is inappropriate for a Rule 60 motion. His motion is therefore untimely and also fails on
the merits. Petitioner fails to set forth allegations of fraud sufficient to support a claim under Rule
60(d)(3) with clear and convincing evidence. Therefore, Petitioner is not entitled to have his
judgment set aside under Rule 60(d)(3).

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IV.

CONCLUSION
For the reasons stated herein, Petitioner’s Motion for Relief from Judgment (Doc. 82) is

denied.
IT IS, THEREFORE, ORDERED that:
1.

Petitioner’s Motion for Relief from Judgment (Doc. 82) is DENIED.

2.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of
appealability.

SO ORDERED.
Signed: March 30, 2021

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