Norman v. Stephens

Filing 109

ORDER DENYING 106 MOTION for Reconsideration, DENYING 107 MOTION Rule 60b. This case is DISMISSED WITHOUT PREJUDICE FOR WANT OF JURISDICTION as an unauthorized successive habeas petition. A certificate of appealability is DENIED. (Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
A NTHONY W HITNEY N ORMAN,
Petitioner,
v.
W ILLIAM S TEPHENS,
Respondent.

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February 08, 2016
David J. Bradley, Clerk

C IVIL A CTION H-13-0624

ORDER
Pending before the Court is petitioner’s Rule 60(b)(6) motion (Docket Entry No. 107)
and a request for the undersigned judge to recuse himself from ruling on the motion (Docket
Entry No. 106). Recusal will be denied and the Rule 60(b)(6) motion dismissed, as follows.
Procedural Background
Petitioner filed a section 2254 habeas petition challenging his 2011 conviction and
twenty-two year sentence for the murder of his wife. The Court denied habeas relief and
dismissed the case on December 11, 2013, and the Fifth Circuit Court of Appeals denied a
certificate of appealability on January 8, 2015. Petitioner filed a Rule 60(b) motion for relief
on April 14, 2015, alleging new evidence of his innocence and re-asserting substantive
claims already raised and rejected in his prior proceedings. The Court dismissed the motion
for want of jurisdiction on April 16, 2015, and informed petitioner that authorization from
the Fifth Circuit was required to pursue his claims. The United States Supreme Court denied
certiorari as to the denial of habeas relief on June 8, 2015. The Fifth Circuit Court of

Appeals subsequently denied petitioner authorization to file a successive habeas petition on
November 19, 2015.
Petitioner again challenges his conviction in this his second Rule 60(b) motion, and
moves for recusal of the undersigned judge so that a different judge can rule on the motion.
Recusal
Petitioner filed an earlier motion for recusal on December 10, 2015 (Docket Entry No.
104), which was dismissed for want of jurisdiction on December 14, 2015, as no other
motions were pending at the time. Petitioner’s instant motion (Docket Entry No. 106)
requests reconsideration of the earlier motion for recusal. Because the pending motion for
reconsideration itself does not conform to the requirements of 28 U.S.C. § 144, the Court will
rely on the earlier motion for recusal.
Once a motion for recusal is filed, the judge must pass on the sufficiency of the
affidavit, but may not pass on the truth of the matters alleged. Henderson v. Dep’t of Public
Safety and Corrections, 901 F.2d 1288, 1296 (5th Cir. 1990). The grounds and allegations
set forth by petitioner here in his affidavit for recusal (Docket Entry No. 104) ultimately arise
from his disagreements and dissatisfaction with the Court’s prior rulings in this case. The
Supreme Court has made clear that opinions formed by a judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or a partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment impossible. Liteky v.

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United States, 510 U.S. 540, 555 (1994). Petitioner here shows nothing beyond the type of
rulings normally made by a federal judge in the course of habeas litigation, which is
insufficient to warrant recusal under Liteky. This is particularly true in the instant case, as
both the Fifth Circuit Court of Appeals and the United States Supreme Court have found no
favor with petitioner’s challenges to his conviction and to this Court’s rulings in his habeas
proceedings.
Petitioner also claims that the undersigned had a pecuniary interest in the outcome of
the habeas case in that the undersigned is a tax payer and allowing petitioner to pursue an
appeal would likely subject the undersigned to payment of additional taxes. He further posits
that the undersigned has apparently joined a criminal conspiracy initiated by police officers,
witnesses, and prosecutors to keep petitioner in prison. These bare assertions are speculative
and unsupported, and are insufficient to warrant recusal or further action under Liteky.
In sum, petitioner’s affidavit presents speculation, personal opinions, and nonspecific
conclusory allegations, and is insufficient to warrant further action. See Chitimacha Tribe
of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir. 1982). The motion for
reconsideration of recusal (Docket Entry No. 106) is DENIED.
Rule 60(b)(6)
In his pending Rule 60(b)(6) motion, petitioner again challenges the Court’s denial
of habeas relief and sets forth arguments that have been repeatedly rejected by the state
courts, this Court, the Fifth Circuit Court of Appeals, and the United States Supreme Court.

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Thus, at issue is whether petitioner’s Rule 60(b)(6) motion stands as a successive habeas
petition under the criteria set forth in Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005). If
so, the motion must be dismissed for want of jurisdiction. It is undisputed that the Fifth
Circuit has not authorized petitioner to pursue a successive habeas petition.
Under Gonzalez, a federal court examining a Rule 60(b) motion should determine
whether it presents either (1) a new habeas claim—defined as “an asserted federal basis for
relief from a state court’s judgment of conviction,” id. at 530, or (2) “attacks the federal
court’s previous resolution of a claim on the merits, since alleging that the court erred in
denying habeas relief on the merits is effectively indistinguishable from alleging that the
movant is, under the substantive provisions of the statutes, entitled to habeas relief,” id. at
532. If either is true, then the Rule 60(b) motion constitutes a successive habeas petition.
See 28 U.S.C. § 2242(b).
Because it challenges this Court’s prior denial of habeas relief on the merits of
petitioner’s claims, the instant Rule 60(b)(6) motion stands as a successive habeas petition,
and must be dismissed without prejudice for want of jurisdiction. Petitioner must obtain
authorization from the Fifth Circuit Court of Appeals to pursue the arguments raised in his
motion.
Assuming petitioner’s Rule 60(b)(6) motion were not an unauthorized successive
habeas petition, the motion would be denied as untimely. Federal Rules of Civil Procedure
Rule 60(c)(1) requires that a motion under Rule 60(b)(6) must be made within a “reasonable

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time.” The timeliness of the motion is measured as of the point in time when the moving
party has grounds to make such a motion, regardless of the time that has elapsed since the
entry of judgment. First RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d 117, 120 (5th
Cir. 1992). Once a party has grounds to make a Rule 60(b) motion, the party must bring the
motion in a reasonably timely manner. Id. at 121. Petitioner’s arguments here attack the
Court’s Memorandum Order and Opinion of December 11, 2013. Accordingly, his Rule
60(b)(6) motion, filed over two years after that ruling, was not filed within a reasonable time.
See Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1410 (5th Cir. 1994).
Moreover, petitioner fails to demonstrate exceptional circumstances sufficient to justify a
Rule 60(b)(6) motion. See Rocha v. Thaler, 619 F.3d 387, 400 (5th Cir. 2010).
Conclusion
Petitioner’s motion for reconsideration of recusal (Docket Entry No. 106) is DENIED.
Petitioner’s Rule 60(b)(6) motion (Docket Entry No. 107) is DISMISSED WITHOUT
PREJUDICE FOR WANT OF JURISDICTION as an unauthorized successive habeas
petition. A certificate of appealability is DENIED.
Signed at Houston, Texas on February 8, 2016.

Gray H. Miller
United States District Judge

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