Johnson v. United States of America

Filing 87

MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 2/8/2017. 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

LORETTA K. KELLY,

Respondent.
MEMORANDUM OPINION

Corey E. Johnson, a Virginia prisoner proceeding pro se, filed a petition pursuant to

28 U.S.C. § 2254 ("§ 2254 Petition"). Johnson challenged his convictions in the Circuit Court

for the City ofRichmond oftwo counts of murder and two counts ofuse of a firearm inthe
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 unsuccessftil motions for relief under Federal
Rule of Civil Procedure 60(b). On January 19, 2017, the Court received from Johnson another
Rule 60(b) Motion (ECF No. 86).

Aparty seeking relief under Federal Rule ofCivil Procedure 60(b) must make a threshold
showing of"timeliness, a meritorious defense, a lack ofunfair 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, 731 F.2d 204, 207 (4th Cir. 1984)). After a party
satisfies this threshold showing, "he [orshe] 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)(4),

hence, under Federal Rule ofCivil 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) Motion, filed more than eight (8) years after the entry
of the challenged judgment, was 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., 491 F.2d 245 (4th Cir. 1974); Consol. Masonry & Fireproofing, Inc. v. Wagman

Constr. Corp., 383 F.2d 249 (4th Cir. 1967))). Accordingly, the Rule 60(b) Motion (ECF
No. 86) will be DENIED. The Court will DENY a certificate of appealability.
An appropriate Order will accompany this Memorandum Opinion.

Date:

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Richmond, Virginia

JohnA.Gibney,Jr. /
United States DistridJiMge