United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE
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
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.
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
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)).
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.
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.
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 ...