Custis v. Clarke

Filing 6

FINAL ORDER. The Court ORDERS that Custis pro se motion to set aside judgment for fraud on the Court filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, is a successive section 2254 petition, which is DENIED and DISMISSED WITHOUT PR EJUDICE to Custis refiling his federal petition after obtaining an order authorizing the filing of successive petition from the Court of Appeals for the Fourth Circuit. A certificate of appealability is DENIED. Petitioner is ADVISED that be may seek a certificate from the United States Court of Appeals for the Fourth Circuit by filing a written notice of appeal with the Clerk of the United States District Court within thirty (30) days. Signed by Chief District Judge Mark S. Davis on 9/12/2019. Copies mailed 9/13/2019. (jmey, )

FILED
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGIK|EA
Norfolk Division

Cl ERK. US DISTRICT G0UR1
NORFOLK. VA

RYRICKA NIKITA CUSTIS, #1207403,
Petitioner,
ACTION NO.

V.

2:19cv214

HAROLD W. CLARKE,

Director, Virginia
Department of Corrections,
Respondent.

FINAL ORDER

Petitioner

Ryricka

Nikita

Custis

{"Custis") /

a

Virginia

inmate, filed a pro se action pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure to set aside the dismissal of his section

2254 habeas petition for fraud on the Court.

ECF No. 1.

Custis

asserts that, in the memorandum in support of the motion to dismiss
Custis' previous federal habeas petition, the respondent committed
fraud on the Court by misstating that the victim identified Custis

at trial in the Circuit Court for the County of Accomack in 2008.
Id. at 3.
habeas

Custis' claim, that this Court's denial of his federal

petition

on

the

merits

was

a

result

of

fraud,

is

not

properly considered under Rule 60(b), and is instead a petition
for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.

Custis previously filed two petitions for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in this Court attacking the

same 2008 convictions.

His first petition was dismissed with

prejudice on April 11, 2014.

2:13cv302, ECF No. 23.

The United

States Court of Appeals for the Fourth Circuit denied Custis a
certificate of appealability on August 1, 2014, and denied his
petition for rehearing on October 28, 2014.

2:13cv302, ECF Nos.

28, 31.

Custis'

second

September 17, 2018.

petition

was

denied

with

prejudice

No. 2:17cv476, ECF No. 26.

on

The Court of

Appeals for the Fourth Circuit modified the dismissal order to

reflect dismissal without prejudice for lack of subject matter
jurisdiction,

and

February 6, 2019.

Appeals

for

the

affirmed

the

Magistrate

Fourth

current

Judge

without prejudice

No. 2:17cv476, ECF Nos. 31, 32.

Circuit

rehearing on March 25, 2019.
Custis'

dismissal

The Court of

Custis'

petition

for

No. 2:17cv476, ECF No. 34.

action

pursuant

denied

on

was

to

referred

the

to

provisions

a

United

of

28

States

U.S.C.

§

636(b)(1)(B) and (C) and Rule 72 of the Local Rules of the United

States District Court for the Eastern District of Virginia for

report

and

recommendation.

ECF

No.

3.

The

report

and

recommendation, filed July 24, 2019, recommends that Custis' pro
se motion to set aside judgment for fraud on the Court filed
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure,

should be denied and dismissed without prejudice as a successive
section 2254 petition.

ECF No. 4.

Each party was advised of his right to file written objections
to the findings and recommendations made by the Magistrate Judge.

On August 5/ 2019, the Court received Custis' objections to the
report and recommendation.

The

Court,

having

ECF No. 5.

reviewed

the

record

and

examined

the

objections filed by petitioner to the report and recommendation,
and having made de novo findings with respect to the portions
objected

to,

does

hereby adopt

and

approve

the

findings

and

recommendations set forth in the report and recommendation.

The

Court, therefore, ORDERS that Custis' pro se motion to set aside
judgment for fraud on the Court, ECF No. 1, filed pursuant to Rule
60(b) of the Federal Rules of Civil Procedure, is a successive

section 2254 petition,

which

is

DENIED and DISMISSED WITHOUT

PREJUDICE to Custis refiling his federal petition after obtaining
an order authorizing the filing of a successive petition from the

Court of Appeals for the Fourth Circuit.
Finding that the basis for dismissal of Custis' section 2254
petition is not debatable, and alternatively finding that Custis
has

not

made

a

''substantial

showing

of

the

denial

of

a

constitutional right," a certificate of appealability is DENIED.
28 U.S.C. § 2253(c); see Rule 11(a) of the Rules Gov. § 2254 Cases
in U.S. Dist. Cts.; Miller-El v. Cockrell, 537 U.S. 322, 335-38
(2003); Slack v. McDaniel, 529 U.S. 473, 483-85 (2000).

Custis is ADVISED that because a certificate of appealability

is denied by this Court, he may seek a certificate from the United
States Court of Appeals for the Fourth Circuit.

Fed. R. App. P.

22(b); Rule 11(a) of the Rules Gov. § 2254 Cases in U.S. Dist.
Cts.

If Custis intends to seek a certificate of appealability

from the Fourth Circuit, he must do so within thirty days from the

date of this Order.

Custis may seek such a certificate by filing

a written notice of appeal with the Clerk of the United States
District

Court,

United

States

Courthouse,

600

Granby

Street,

Norfolk, Virginia 23510.
The Clerk shall mail a copy of this Final Order to Custis and
counsel of record for respondent.

/s/

Mark S. Davis

ChiefJudge
Mark S. Davis

Chief United States District Judge

Norfolk, Virginia

September /;2-, 2019