Bryan v. McFadden

Filing 34

ORDER denying the motion to reconsider (ECF No. 33 ). Signed by Honorable Timothy M Cain on 2/8/2016.(mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISCTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
T. Terell Bryan,
Petitioner,
v.
Warden McFadden,
Defendant.

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Civil Action No. 5:14-3627

ORDER

Petitioner, proceeding pro se, is a state prisoner seeking relief under 28 U.S.C. § 2254.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., all pre-trial
proceedings were referred to a magistrate judge. On October 6, 2014, the magistrate judge
issued a Report and Recommendation (“Report”), recommending that the court dismiss his
petition for a writ of habeas corpus without prejudice. Petitioner filed timely objections (ECF
No. 11), along with a motion to amend/correct his petition (ECF No. 12) and a motion for leave
to file a supplemental writ and an affidavit (ECF No. 14). On October 31, 2014, the court
entered an order summarily dismissing Petitioner’s case, and denying his motion to amend the
petition and motion for leave to file a supplemental writ and an affidavit. (ECF No. 16).
On November 25, 2014, Petitioner filed a motion to reconsider. (ECF No. 19). On
December 9, 2014, the court denied that motion. (ECF No. 20). On December 17, 2014,
Petitioner filed a second motion to reconsider, and he also filed a notice of appeal. (ECF Nos.
22, 23). On December 22, 2014, the court issued an order denying Petitioner’s second motion to
reconsider. (ECF No. 29). On March 20, 2015, the Fourth Circuit issued an unpublished
opinion dismissing his appeal. Bryan v. McFadden, 598 F. App'x 204 (4th Cir. Mar. 20, 2015).

On October 22, 2015, Petitioner filed his third motion to reconsider. (ECF No. 33).
Petitioner claims that he is seeking relief pursuant to Fed. R. Civ. P. 60(b)(5). In his motion to
reconsider, he claims that Respondent owes him various types of credits. (ECF No. 33). Rule
60(b) allows a court to “relieve a party . . . from a final judgment, order, or proceeding” for
specific reasons. Fed. R. Civ. P. 60(b). Rule 60(b)(5) allows a court to provide relief from a
judgment when “the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer equitable.”
The court finds that Petitioner has failed to meet his burden to satisfy the requirements of Rule
60(b)(5), or any other grounds of relief provided in Rule 60. Therefore, the court DENIES the
motion to reconsider (ECF No. 33).
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
February 8, 2016
Anderson, South Carolina