Pegues, Norris v. Huibregtse, Peter

Filing 27

ORDER denying 18 Motion for Relief from Judgment; granting 22 Motion for Substitution. Signed by District Judge William M. Conley on 3/7/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

NORRIS E. PEGUES,

ORDER

Petitioner,

11-cv-194-wmc

v.
TIMOTHY DOUMA, WARDEN,
Respondent.

On March 15, 2011, Norris E. Pegues filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254, challenging his state court conviction for attempted first-degree
intentional homicide and possession of a firearm by a felon. On September 24, 2012, the
court denied his petition because he procedurally defaulted on his federal claims and did not
establish cause and prejudice or actual innocence. (Dkt. #8.) Judgment was entered on
September 25, 2012.

Almost three years later, on September 10, 2015, Pegues filed a

Motion for Reconsideration of the court’s September 24, 2012, order. (Dkt. #18.) 1
Pegues states that his request for relief from judgment falls under Rule 60(b)(1) and
(6), and that relief is warranted because “the district judge misapplied rules 4 and 5 that
governs 28 U.S.C. § 2254 cases.” Under Rule 60(c)(1), however, “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.”
As Pegues is arguing that the court made a mistake in its order, this motion is properly
construed as having been brought under Rule 60(b)(1), which permits requests for relief from
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Pegues also filed a Motion for Substitution (dkt. #22), requesting that Timothy Douma be
substituted as the respondent because he has been transferred to the New Lisbon Correctional
Institution, where Douma is the warden. Pursuant to Fed. R. Civ. P. 25, the motion will be granted.
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judgment due to “mistake, inadvertence, surprise, or excusable neglect.”

On these facts,

however, relief under Rule 60(b)(1) is barred because Pegues brought the motion almost
three years after the September 25, 2012, entry of judgment, which well exceeds the one-year
time limit prescribed by Rule 60(c)(1).
Likewise, relief under Rule 60(b)(6) is unavailable to Pegues for two reasons. First, a
motion for relief from judgment under Rule 60(b)(6) may be granted in only “extraordinary
circumstances.” Agostini v. Felton, 521 U.S. 203, 239 (1997); Arrieta v. Battaglia, 461 F.3d
861, 865 (7th Cir. 2006).

Relief under this subsection is available only if the grounds

asserted for relief do not fit under any of the other subsections of Rule 60(b). Margoes v.
Johns, 798 F.2d 1069, 1073 n.6 (7th Cir. 1986). As noted, Pegues’ motion argues that the
court’s order dismissing his petition was mistaken, which falls squarely as a motion under
Rule 60(b)(1), and litigants may not “use subsection (6) to circumvent the rather demanding
time limitations placed on a motion under subsections (1) through (3).” Id.
Second, relief under Rule 60(b)(6) is unavailable because it was not filed within a
reasonable time. In determining whether a motion under Rule 60(b) has been filed within a
“reasonable time,” courts consider “the facts of each case, the reason for the delay, the
practical ability of the litigant to learn earlier of the grounds relied upon, and the prejudice to
other parties if judgment is revisited.” Johns, 798 F.2d at 1073 n.6. Here, Pegues argues that
his delay in filing his Rule 60(b) motion was because prison officials (1) removed federal
material from the prison law library and purposely disabled all computers; (2) denied Pegues
the use of the law library from December 14, 2012, to January 22, 2014; and (3) denied
Pegues meaningful use of the law library during his federal habeas proceedings.

He

submitted multiple inmate complaints that he filed between December 2011 and January
2013 in which he periodically complained about his inability to access the law library. (See
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Dkt. #19-6.) In August of 2015, he also complained that he was unable to use the law
library’s computers or access federal materials.
While Pegues’ access to legal materials may have been somewhat limited between
2012 and 2014, it does not appear that he was denied complete access to any legal materials
during this time because he was able to litigate his direct appeal of this case. Although he
ultimately lost his appeal, on May 13, 2013, Pegues filed a 44-page request for rehearing that
was typed on a computer, cited to numerous authorities relevant to his petition and included
substantial analysis of procedural default. Pegues v. Haines, No. 12-3576, dkt. #15 (7th Cir.,
filed May 13, 2013). It is apparent that to prepare this motion, Pegues had access to not
only the law library, but research materials and a working computer. He does not explain
why he did not file his Rule 60(b) motion in this court during that time. More importantly,
although Pegues regained access to library materials after January 2014, he did not file his
Rule 60(b) motion in this court for well over another year after he regained access. He does
not explain this delay either. Accordingly, the court is unpersuaded that his justifications for
his delay were reasonable, and his motion must be denied.
ORDER
IT IS ORDERED that:
(1) Petitioner Norris E. Pegues’ Motion for Substitution (dkt. #22) is GRANTED;
(2) Petitioner’s Motion for Relief from Judgment (dkt. #18) is DENIED.
Entered this 7th day of March, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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