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Wofford v. United States

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

June 19, 2018

VAELON WOFFORD, #42947-177, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Sam A. Lindsay United States District Judge.

         Before the court is Petitioner's Motion for Issuance of Certificate of Appealability (Doc. 20), filed May 18, 2018; Petitioner's Motion for Reconsideration of the Court's Decision Pursuant to Rule 60(b)(6) (Doc. 22), filed June 14, 2018; and the magistrate judge's Findings, Conclusions, and Recommendation (“Report”) (Doc. 21), filed May 21, 2018, recommending that the court deny Petitioner's Motion for Issuance of Certificate of Appealability for the reasons the court previously denied Petitioner a certificate of appealability in this case. No. objections to the Report were received as of the date of this order.

         Having considering Petitioner's Motion for Issuance of Certificate of Appealability (Doc. 20), the record in this case, and Report, the court determines that the magistrate judge's findings and conclusions are correct, accepts them as those of the court, and denies Petitioner's Motion for Issuance of Certificate of Appealability (Doc. 20) for the same reasons the court previously denied Petitioner a certificate of appealability in this case.

         The further determines that Petitioner is not entitled to relief under Federal Rule of Civil Procedure 60(b)(6). Petitioner appealed the judgment in this case before filing his Motion for Reconsideration under Rule 60(b). The filing of a notice of appeal normally divests the district court of jurisdiction over any matter involved in the appeal. See Alvestad v. Monsanto Co., 671 F.2d 908, 911 n.2 (5th Cir. 1982); Henry v. Indep. Am. Sav. Ass'n, 857 F.2d 995, 997-98 (5th Cir. 1988). A district court, nevertheless, has authority to deny Rule 60(b) relief while an appeal is pending, but it may not grant such relief without obtaining leave from the court of appeals. See Willie v. Cont'l Oil Co., 746 F.2d 1041, 1046 (5th Cir. 1984), on reh'g, 784 F.2d 706 (5th Cir. 1986) (en banc).

         Rule 60(b)(6) states that the court may relieve a party from a final judgment or order for any “reason that justifies relief.” To obtain relief, however, the moving party must demonstrate “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 v. Crosby, 545 U.S. 524, 532 nn.4 & 5 (2005)). A ruling pursuant to Rule 60(b) is left to the “sound discretion of the district court.” Steverson v. GlobalSantaFe Corp., 508 F.3d 300, 303 (5th Cir. 2007) (quoting Stipelcovich v. Sand Dollar Marine, Inc., 805 F.2d 599, 604 (5th Cir. 1986)).

         In his Motion for Reconsideration, Petitioner reiterates his contention that his habeas petition under 28 U.S.C. § 2255 is not time-barred in light of the new rulings or intervening changes of law in United States v. Hinkle, 2016 WL 4254372 (5th Cir. 2016), and United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017). Petitioner contends that Tanksley is intervening law that entitles him to substantive relief. Specifically, Petitioner argues that the decisions in Hinkle and Tanksley “render[] the court's decision to deny [his] claim as time[-]barred, demonstrably wrong and failing to reconsider the . . . decision will produce an unwarranted disparity between [him] and similarly situated defendants in other cases.” Mot. for Reconsideration 3.

         Petitioner previously relied on Hinkle in support of his habeas petition and in objecting to the magistrate judge's findings and conclusions. As correctly noted by the magistrate judge, however, Hinkle was a decision by the Fifth Circuit, not the United States Supreme Court, whereas section 2255(f)(3) applies only to claims relying on a rule “newly recognized by the Supreme Court.” Findings, Conclusions, Recommendation 3 (Doc. 11). The magistrate judge, therefore, concluded that Hinkle did not trigger section 2255(f)(3). For the same reason, the court determines that Petitioner's new intervening law argument based on the Fifth Circuit's opinion in Tanksley fares no better.

         Petitioner also contends that he is entitled to relief because Rule 60(b)(6) “is a residual or catch-all provision to cover unforeseen contingencies-a means to accomplish justice under exceptional circumstances.” Mot. for Reconsideration 3 (Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 357 (5th Cir. 1993)). The Fifth Circuit in Edward H. Bohlin Co., Inc., however, also explained that “[t]he broad power granted by clause (6) is not for the purpose of relieving a party from free, calculated, and deliberate choices he has made. A party remains under a duty to take legal steps to protect his own interests.” Id. (citation and footnote omitted). Moreover, the magistrate judge previously determined, and this court agreed, that Petitioner had not “demonstrated that he diligently pursued his rights or that extraordinary circumstances prevented him from filing his motion to vacate earlier so as to warrant equitable tolling.” Findings, Conclusions, Recommendation 5 (Doc. 11). While Petitioner objected to this determination, he did so only based on his contention that the opinions in Hinkle, Tanksley, and other cases were intervening law entitling him to relief, which contention was rejected by the magistrate judge and this court.

         Furthermore, a change in decisional law alone does not constitute an “extraordinary circumstance” warranting relief from a judgment. Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012) (citing Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990)); see also Gonzalez, 545 U.S. at 536. “[T]his rule applies with equal force in habeas proceedings under the Antiterrorism and Effective Death Penalty Act (“AEDPA”).” Adams, 679 F.3d at 320 (internal quotation marks omitted).

         Accordingly, for all of the foregoing reasons, the court determines that Petitioner's sole basis for reconsideration, an alleged intervening change in the law, does not constitute the type of “extraordinary circumstances” that would justify relief from the AEDPA's statutory time-bar for filing habeas actions or warrant the reopening of the judgment in this case and denies Petitioner's Motion for Reconsideration of the Court's Decision Pursuant to Rule 60(b)(6) (Doc. 22).[*]

         It is so ordered

---------

Notes:

[*] In Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), the Fifth Circuit explained as follows regarding the interplay between section 2254 habeas ...


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