Weaver v. Thaler

Filing 48

MEMORANDUM OPINION AND ORDER re 47 MOTION for Relief from a Judge or Order FRCP Rule 60 filed by Joseph Francis Weaver. ORDERED that Petitioner's motion for relief from judgment (docket entry #47) is DENIED. Any motions not previously ruled upon are DENIED. Signed by Judge Richard A. Schell on 9/28/2014. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JOSEPH FRANCIS WEAVER, #1394333

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:10cv46

MEMORANDUM OPINION AND ORDER
Petitioner Joseph Francis Weaver, a Texas prison inmate confined at the McConnell Unit in
Beeville, Texas, proceeding pro se, filed a motion for relief from judgment (docket entry #47). To
succeed on such a motion, a party must “clearly establish either a manifest error of law or fact or
must present newly discovered evidence.” Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005). A
motion for relief from judgment should not be used to rehash evidence, legal theories, or arguments
that could have been raised or were raised before entry of judgment. Simon v. United States, 891
F.2d 1154, 1159 (5th Cir. 1990). Reconsideration of a judgment after its entry is an extraordinary
remedy that should be used sparingly. Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir.
2004).
Petitioner asserts that he is entitled to relief because his case was dismissed although he had
filed a motion for an extension of time in which to file his objections. A review of the docket shows
that the Report and Recommendation was issued on March 8, 2013; accordingly, objections were
due March 22, 2013. On March 25, 2013, the United States Magistrate Judge forwarded the closing
documents to the undersigned court. After the closing documents had been forwarded, Petitioner’s

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motion for an extension of time was filed that day. Final Judgment was issued on March 26, 2013.
The court informed Petitioner of the opportunity to file a Rule 60 motion and instructed him
to file his objections to the Report and Recommendation with the motion, and the court would
conduct a de novo review in the interest of justice. However, Petitioner still has not filed objections.
Thus, he has presented nothing for the court to consider. It appears that Petitioner believes that
he filed objections prior to this date. However, he is simply wrong. The court informed Petitioner
that no objections had been filed in this case when addressing his Rule 59 motion. He has failed
to present arguments that “clearly establish either a manifest error of law or fact or . . . newly
discovered evidence.” Ross, 426 F.3d at 763. Therefore, in the absence of any new arguments or
evidence that could not have been raised in Petitioner’s first proceeding, the court denies Petitioner’s
motion for relief. It is accordingly
ORDERED that Petitioner’s motion for relief from judgment (docket entry #47) is
DENIED. Any motions not previously ruled upon are DENIED.
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SIGNED this the 28th day of September, 2014.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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