Grimm v. Johnson
Filing
38
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 9/3/13. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
MARVIN LEON GRIMM, JR.,
Petitioner,
Civil Action No. 3:10CV593
v.
GENE JOHNSON,
Respondent.
MEMORANDUM OPINION
Marvin Leon Grimm, a Virginia prisoner, filed this action, which he denominated as a 28
U.S.C. § 2254 petition. By Memorandum Opinion and Order entered on August 2, 2011, the
Court dismissed the present action. See Grimm v. Johnson, No. 3:10CV593, 2011 WL 3321474,
at *4 (E.D. Va. Aug. 2,2011). Prior to dismissing the action, the Court observed:
Grimm is entitled to federal habeas relief only if he can demonstrate that
his continued detention "violat[es] the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). There is some doubt whether Grimm may
bring his present challenges to Virginia's parole scheme in habeas rather than in a
civil rights action under 42 U.S.C. § 1983
The Supreme Court, however, has not decided whether § 1983 is the
exclusive remedy for prisoners, like Grimm, who seek immediate release even
though the challenges they raise plainly do not make that remedy available. See
Townes v. Jarvis, 577 F.3d 543, 549-50 n.4 (4th Cir. 2009); Terrell v. United
States, 564 F.3d 442, 446 (6th Cir. 2009) (noting the circuit courts "appear to be
in conflict" on "whether habeas and § 1983 (or the equivalent for a federal
prisoner) are mutually exclusive actions"). The Court need not resolve this
contentious issue because Grimm's constitutional challenges fail under either
habeas or § 1983.
Id. at *l-2 (alteration in original) (citations omitted). On May 28, 2013, the Court received a
motion from Grimm seeking relief under Federal Rule of Civil Procedure 60(b)(4) ("Rule 60(b)
Motion").
Rule 60(b)(4) permits a court to vacate a judgment, when "the judgmentis void." Fed. R.
Civ. P. 60(b)(4). Courts shouldtreat a judgment as void'" [o]nly whenthe jurisdictional error is
egregious.'" Wendt v. Leonard, 431 F.3d410, 413 (4th Cir. 2005) (some internal quotation
marks omitted) (quoting United States v. Tittjung, 235 F.3d 330, 335 (7th Cir. 2000)). This
occurs "'only when there is a total want ofjurisdiction and no arguablebasis on which [the
court] could have rested a finding that it had jurisdiction.'" Id. (some internal quotation marks
omitted) (quotingNemaizer v. Baker, 793 F.3d 58, 65 (2d Cir. 1986)). "In practice, a 'federal
courtjudgment is almost never void because of lack of federal subject matter jurisdiction.'"
Hawkins v. Borsey, 319 F. App'x 195, 196 (4th Cir. 2008) (quoting Wendt, 431 F.3d at 413).
Grimm fails to demonstrate that the Court lacked subject matter jurisdiction over his action
where he brought constitutional challenges to his confinement. Accordingly, Grimm's Rule
60(b) Motion (ECF No. 37) will be DENIED. Acertificate ofappealability will be DENIED.1
An appropriate Order will accompany this Memorandum Opinion.
It is so ORDERED.
Date: J^V O
Richmond, Virginia
JsL
Jamr-s R. Spencer
United States District Judge
1An appeal may not be taken from the final order in a § 2254 proceeding unless a judge
issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). A COA will not issue
unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were *adequate to deserve encouragement to proceed further.'" Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
(1983)). No law or evidence suggests that Grimm is entitled to further consideration in this
matter.
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