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Shafer v. United States

United States District Court, N.D. Texas, Dallas Division

May 21, 2018

NATHAN TODD SHAFER, #39462-177, Petitioner,



         Petitioner Nathan Todd Shafer (“Shafer”) moves for relief from judgment under Fed.R.Civ.P. 60(b)(4), (b)(5), and (b)(6). For the reasons that follow, the court denies the motion.


         Shafer was convicted of conspiracy to commit wire and mail fraud and was sentenced to 108 months' imprisonment and ordered to pay restitution of approximately $3.26 million. His conviction was affirmed on direct appeal. United States v. Simpson, 741 F.3d 539 (5th Cir. 2014). Through retained counsel, Shafer filed a motion to vacate sentence under 28 U.S.C. § 2255, which the court denied on April 24, 2017. Shafer did not appeal that decision. Almost one year later, however, he filed the instant Rule 60(b) motion challenging the integrity of the habeas proceedings and alleging that (1) the magistrate judge was biased, (2) the magistrate judge's recommendation failed to address all claims, and (3) the court failed to conduct a de novo review of the § 2255 evidence.


         To the extent that Shafer challenges the integrity of the habeas proceeding, his motion is not the equivalent of a successive application, so the court can review his claims under Rule 60(b). See, e.g., Gonzalez v. Crosby, 545 U.S. 524, 532 nn.4 & 5 (2005) (concluding that true Rule 60(b) motion is one that challenges (1) a procedural ruling or (2) a defect in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack).

         Shafer cannot obtain relief from judgment under Rule 60(b)(4) and (b)(5), however, where the allegations are essentially the identical ground for relief sought under the Rule 60(b)(6) “catch-all clause.” See Hess v. Cockrell, 281 F.3d 212, 215 (5th Cir. 2002); see also Hesling v. CSX Transp., Inc., 396 F.3d 632, 643 (5th Cir. 2005) (“relief under 60(b)(6) is mutually exclusive from relief under sections (1)-(5)”). Here, Shafer has not advanced any separate ground for relief under (b)(4) and (b)(5), reiterating instead the same defects in the habeas proceeding presented under 60(b)(6). In fact, he has alleged no fact that would invoke either of these provisions. Thus the court considers the motion for relief from judgment as only seeking relief under Rule 60(b)(6). See Hess, 281 F.3d at 215 (construing Rule 60(b)(5) request under Rule 60(b)(6)).



         Under Rule 60(b)(6), a final judgment can be set aside for “any other reason that justifies relief.” To obtain relief, however, the moving party must show “extraordinary circumstances, ” which the Supreme Court has held “‘will rarely occur in the habeas context.'” Buck v. Davis, U.S., 137 S.Ct. 759, 772 (2017) (quoting Gonzalez, 545 U.S. at 535). Moreover, “Rule 60(b)(6) motions are not substitutes for timely appeals, ” Hess, 281 F.3d at 216, and “the decision to grant or deny relief . . . lies within the sound discretion of the district court.” Tamayo v. Stephens, 740 F.3d 986, 990 (5th Cir. 2014) (quotation and quoted case omitted). Shafer has failed to demonstrate the existence of extraordinary circumstances in this case.



         Shafer avers that United States Magistrate Judge Renée Harris Toliver was biased because, before she was appointed as a magistrate judge, she served as an Assistant United States Attorney (“AUSA”), and, in that capacity, she had “a long standing working friendship” with the AUSAs who subsequently prosecuted Shafer for mail and wire fraud in his criminal case. The court holds that his assertions are both unsupported and erroneous.

         First, Judge Toliver was not involved in prosecuting Shafer's criminal case. Section 455(b)(3) of title 28 “does not mandate recusal unless the former government attorney has actually participated in some fashion in the proceedings.” Mangum v. Hargett, 67 F.3d 80, 83 (5th Cir. 1995) (emphasis in original). Indeed for several years prior to her June 2010 appointment, Judge Toliver worked in the appellate section of the U.S. Attorney's office, and her employment as an AUSA is far from disqualifying. See Id. (holding that judge's membership in prosecution staff during guilty plea challenged by defendant did not mandate recusal where judge did not personally work on that specific case); United States v. Outler, 659 F.2d 1306, 1312-13 (5th Cir. Unit B Oct. 1981) (holding that magistrate's prior role as prosecutor in unrelated incident involving same defendant was not sufficient to require ...

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