Johnson v. United States of America

Filing 79

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 3/26/2016. Copy mailed to Pro Se Petitioner. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
COREY E. JOHNSON,
Petitioner,

v.

Civil Action No. 3:07CV731

LORETTAK. KELLY,
Respondent.
MEMORANDUM OPINION
Corey E. Johnson, a Virginia prisoner proceeding prose, filed a petition pursuant to
28 U.S.C. § 2254 ("§ 2254 Petition"). Johnson challenged his convictions in the Circuit Court
for the City of Richmond of two counts of murder and two counts of use of a firearm in the
commission of those offenses. By Memorandum Opinion and Order entered on August 28,
2008, this Court found that Johnson procedurally defaulted his claims and denied the§ 2254
Petition. See Johnson v. Kelly, No. 3:07CV731, 2008 WL 3992638, at *1-2 (E.D. Va. Aug. 28,
2008). Thereafter, Johnson submitted a series of unsuccessful motions for relief under Federal
Rule of Civil Procedure 60(b). On October 26, 2015, and November 6, 2015, the Court received
from Johnson two more Rule 60(b) Motions (ECF Nos. 77, 78).
A party seeking relief under Federal Rule of Civil Procedure 60(b) must make a threshold
showing of "'timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party,
and exceptional circumstances."' Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46,
48 (4th Cir. 1993) (quoting Werner v. Carbo, 731F.2d204, 207 (4th Cir. 1984)). After a party
satisfies this threshold showing, "he [or she] then must satisfy one of the six specific sections of
Rule 60(b)." Id. (citing Werner, 731 F.2d at 207). Johnson seeks relief under Rule 60(b)(6),
hence, under Federal Rule of Civil Procedure 60(c)(1) he was required to file his motion within a
reasonable time after the entry of the August 28, 2008 Memorandum Opinion and Order. Fed. R.
Civ. P. 60(c)(l)( "A motion under Rule 60(b) must be made within a reasonable time-and for

reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date
of the proceeding.") Johnson's Rule 60(b) Motions, filed more than seven (7) years after the
entry of the challenged judgment, were not filed in a reasonable time. See Mclawhorn v. John
W Daniel & Co., Inc., 924 F.2d 535, 538 (4th Cir. 1991) ("We have held on several occasions
that a Rule 60(b) motion is not timely brought when it is made three to four months after the
original judgment and no valid reason is given for the delay." (citing Cent. Operating Co. v.
Utility Workers ofAm., 491F.2d245 (4th Cir. 1974); Consol. Masonry & Fireproofing, Inc. v.
Wagman Constr. Corp., 383 F.2d 249 (4th Cir. 1967))). Accordingly, the Rule 60(b) Motions
(ECF Nos. 77, 78) will be DENIED. The Court will DENY a certificate of appealability.
An appropriate Order will accompany this Memorandum Opinion.

Isl
James R. Spencer

Date: 3 ,. ~'),..
Richmond, Virginia

J.£

Senior U. S. District Judge

2