Hubbeling v. USA

Filing 55

ORDER dismissing 37 Motion for New Trial; denying 50 Motion Adverse Inference. Certificate of Appealability is granted on the issue whether Petitioner's Rule 60(b)(6) motion is in effect a second or successive § 2255 motion. Signed by U.S. District Judge Lawrence L. Piersol on 3/18/2020. (JLS)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

RUSSELL HUBBELING,

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ss

Petitioner,

CIV 98-4176

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ORDER

vs.

UNITED STATES OF AMERICA,
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Respondent.

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This matter is before the Court on Petitioner Russell Hubbeling's motion for a new trial

pursuant to Federal Rule of Civil Procedure 60(b)(6). (Doc. 37.) Also pending is Petitioner's
motion for adverse inference.(Doc. 50.)

For the reasons set forth in the Memorandum Opinion and Order issued on this date in
Desmond Rouse and Jesse Rouse v. United States of America, CIV 06-4008, the Court denies

Petitioner's request for relief under Rule 60(b)(6) and dismisses the motion for failure to obtain
authorization from the Eighth Circuit to file a second or successive motion under § 2255. The
motion for adverse inference is also denied for the same reasons set forth in the Memorandum

Opinion and Order in the Rouse case.
CERTIFICATE OF APPEALABILITY

The Court finds that a reasonable jurist could conclude that this Court erred in finding that

Petitioner's Rule 60(b)(6) motion is in effect a second or successive § 2255 motion and dismissing
the motion. Accordingly, after careful review and consideration, the Court grants a Certificate of
Appealability.

IT IS ORDERED:

1. That Petitioner's motion for a new trial under Rule 60(b)(6), Doc. 37, is actually a second

or successive §2255 motion that must be dismissed for failure to obtain authorization
from the Eighth Circuit;

2. That a Certificate of Appealability is granted on the issue whether Petitioner's Rule
60(b)(6) motion is in effect a second or successive § 2255 motion;
3. That Petitioner's motion for an adverse inference, Doc. 50, is denied.

Dated this 18th day of March,2020.
BY THE COURT:

ODXaux
awrence L. Pierscl

United States District Judge
ATTEST:

MATTHEW W.THELEN. CLERK