United States District Court, N.D. Texas, Dallas Division
Lindsay United States District Judge.
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
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.
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).
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)).
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.
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.
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.
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).
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.
is so ordered
Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007),
the Fifth Circuit explained as follows regarding the
interplay between section 2254 habeas ...