United States District Court, S.D. Texas, Houston Division
H. Miller Senior United States District Judge.
before the Court is defendant Cheryl Reed Johnson's pro
se Rule 60(b)(6) motion in this section 2255
lawsuit. (Docket Entry No. 206.) Having considered the
motion, the record in this case and in defendant's other
cases, public records for the Fifth Circuit Court of Appeals,
and the applicable law, the Court denies and/or dismisses
this motion for the reasons explained below.
Defendant pleaded guilty to several fraud-related charges in
two criminal proceedings, C.A. No. 14-cr-047-1 and C.A.
No.l4-cr-575-1. Both cases were before this Court, and
defendant was sentenced at a combined hearing on September
10, 2015, to serve 151 months in prison and a three-year term
of supervised release. The Court denied defendant's
combined section 2255 motion on November 21, 2017, and the
Fifth Circuit Court of Appeals denied a certificate of
appealability on August 14, 2018. United States v.
Johnson, Appeal No. 17-20789 (5th Cir.).
further action appears on this Court's docket until April
12, 2019, when defendant's pending Rule 60(b)(6) motion
was docketed. Defendant raises the following four
grounds for relief in the motion:
1. The Court erred in entering a Castro warning.
2. The Court "hindered" the time bar for filing a
section 2255 motion.
3. The Court failed to "examine the full merit" of
defendant's ineffective assistance claim as to breach of
he plea agreement.
4. The Court failed to "articulate ii:s rationale for
the conflicting findings" in its denial of section 2255
first and second grounds constitute proper grounds for relief
under Rule 60(b), and are denied. The third and fourth
grounds disagree with the Court's substantive rulings in
its denial of defendant's section 2255 motion, and
constitute unauthorized successive habeas claims that must be
dismissed for lack of jurisdiction.
argues entitlement to relief under Federal Rule of Civil
Procedure 60(b)(6), which is a catch-all provision allowing
relief from an order for "any other reason that
justifies relief." A Rule 60(b)(6) motion must be filed
within a reasonable time. Although the Rule itself provides
no definition of "a reasonable time," guidance can
be found in Fifth Circuit Court of Appeals precedent. In
Clark v. Davis, the Fifth Circuit stated that
reasonableness turns on the particular facts and
circumstances of the case. 850 F.3d 770 (5th Cir. 2017).
"[T]imeliness . . . i:s measured as of the point in time
when the moving party has grounds to make [a Rule 60(b)]
motion, regardless of the time that has elapsed since the
entry of judgment." Id., quoting First
RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d 117,
119, 120 (5th Cir. 1992).
defendant's Castro argument and i:s related
limitations claim, defendant knew of the Court's
Castro warning in May 2017, when the Court issued
its Castro warning and served a copy on defendant.
(Docket Entry No. 192.) Defendant subsequently filed a
combined section 2255 due to the overlapping nature of her
habeas claims. In appealing the denial of section 2255
relief, defendant did not challenge the Castro
warning or its effect on limitations in her 2017 opening and
2018 amended briefing. The Fifth Circuit denied defendant a
certificate of appealability on August 14, 2018, and noted
that she had "move[d] this court for a certificate of
appealability (COA) to appeal the district court's denial
of the 28 U.S.C. § 2255 motion that she filed with
respect to both of her criminal cases." Not until her
motion for reconsideration on appeal, filed in September
2018, did defendant raise any issue as to the Castro
warning. Defendant complained, as she does in the instant
motion, that the Castro warning was erroneous and
had "narrowed" her one-year limitation deadline by
four months. The Fifth Circuit denied her motion for
reconsideration on September 25, ...