United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE
Special Order 3-251, this habeas case has been
referred for findings, conclusions, and recommendation.
Before the Court is the petitioner's Petition to
Supplement Petitioner's Original Rebuttal Submission to
the Magistrate's Findings, Conclusions, and
Recommendation, received on April 9, 2019 (doc. 37).
Based on the relevant filings and applicable law, the motion
should be construed as a motion under Fed.R.Civ.P. 60(b) and
September 21, 2018, it was recommended that the
petitioner's habeas petition under 28 U.S.C. § 2241
be dismissed for lack of jurisdiction; the recommendation was
accepted and the petition was dismissed on October 15, 2018.
(See docs. 11-13.) On October 25, 2018, the
petitioner moved to set aside the judgment on grounds that he
did not receive a copy of the recommendation. (See
doc. 14.) On November 5, 2018, it was recommended that the
judgment be vacated, and that he be given an opportunity to
file objections to the recommendation. (See doc.
15.) A copy of the recommendation for dismissal was sent to
him, and he was directed to file his objections within 14
days of being served with the recommendation. (See
id.) The petitioner received a copy of the
recommendation for dismissal on November 14, 2008, and he was
granted an extension of time until December 14, 2018, to file
his objections. (See docs. 16, 17.)
petitioner submitted an “abbreviated response”
that was received on December 14, 2018, and he sought an
extension of time to supplement his objections with
additional facts. (See docs. 18, 19.) By order dated
December 21, 2018, he was granted an extension until January
14, 2019, to file supplemental objections. (See doc.
20.) The order specifically provided that no further
extensions would be granted, and that if his supplemental
objections were not received by that date, only the
objections on file would be considered. (See id.)
petitioner then filed a Petition for Temporary Injunction
Grant, received on December 31, 2018. (See doc.
21.) It sought injunctive relief in the form of access to law
library reference materials, a law library computer, a
typewriter, printer, photocopier, and stored legal documents.
On January 8, 2019, it was recommended that the motion for
injunctive relief be denied. (See doc. 22.)
Petitioner filed objections to the recommendation that
injunctive relief be denied, which were received on January
22, 2019. (See doc. 24.) His objections did not
include any additional objections to the original
recommendation to dismiss the habeas petition.
January 23, 2019, the recommendation to grant the motion to
set aside the judgment was accepted, and the judgment was
vacated to allow for consideration of the petitioner's
objections to the recommended dismissal of his petition.
(See doc. 25.) On February 6, 2019, both the
recommendation to deny injunctive relief and the original
recommendation to dismiss the petition for lack of
jurisdiction were accepted, the petition was again dismissed
for lack of jurisdiction, and judgment was entered.
(See docs. 26-28.) On March 5, 2019, the
petitioner's request for an extension of time to file
objections to the original recommendation to dismiss the
petition was received, and on March 8, 2019, it was
recommended that the motion be construed as a arising under
Fed.R.Civ.P. 59(e) and denied. (See docs. 31, 33.)
March 8, 2019, the petitioner's Petition to Set Aside
District Court Decision Pursuant to F.R.Ci. P. Rule 59e
was received. (See doc. 32.) The recommendation that
the prior request for an extension of time be construed as a
motion under Fed.R.Civ.P. 59(e) and denied was accepted by
order dated April 3, 2019. (See doc. 35.) On April
4, 2019, it was recommended that the Rule 59(e) petition be
construed as a motion under Fed.R.Civ.P. 60(b) and denied.
(See doc. 36.) The petitioner now seeks to
supplement his Rule 59(e) motion. (See doc. 37.) He
reasserts his argument that his claims were properly brought
under § 2241 and claims that he has been denied his
right to refuse to have a magistrate judge decide his case.
FED. R. CIV. P. 60(b)
a litigant files a motion seeking a change in judgment,
courts typically determine the appropriate motion based on
whether the litigant filed the motion within Rule 59(e)'s
time limit.” Williams v. Thaler, 602 F.3d 291,
303 & n. 10 (5th Cir. 2010). Because the petitioner's
motion was mailed outside of Rule 59(e)'s limit, it is
properly construed as a motion under Fed.R.Civ.P. 60(b).
60(b) provides that a court may relieve a party from a final
judgment or order for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could
not have been discovered earlier; (3) fraud,
misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied,
released, or discharged, or it is based on an earlier
judgment that has been reversed or vacated, or that applying
the judgment prospectively is no longer equitable; or (6) any
other reason that justifies relief. See Rule
60(b)(1)-(6). A Rule 60(b) motion must be made within a
reasonable time, and no longer than one year after judgment
was entered of relief is sought under subsections (1), (2),
and (3). See Rule 60(c)(1).
the petitioner has not alleged or shown mistake, newly
discovered evidence, fraud, or a void or satisfied judgment
that would entitle him to relief under Rule 60(b)(1)-(5). His
motion may therefore be construed as arising under the
“catch-all” clause of Rule 60(b)(6). See Hess
v. Cockrell, 281 F.3d 212, 215-16 (5th Cir. 2002). This
clause is “‘a residual clause used to cover
unforeseen contingencies; that is, it is a means for
accomplishing justice in exceptional
circumstances.'” Steverson v. GlobalSantaFe
Corp., 508 F.3d 300, 303 (5th Cir. 2007) (quoting
Stipelcovich v. Sand Dollar Marine, Inc., 805 F.2d
599, 604-05 (5th Cir. 1986)). Motions under this clause
“will be granted only if extraordinary circumstances
are present.” Hess, 281 F.3d at 216.
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th
Cir. 1981), the Fifth Circuit set forth factors to consider
when evaluating a motion under this clause: (1) that final
judgments should not lightly be disturbed; (2) that a Rule
60(b) motion should not be used as a substitute for appeal;
(3) that the rule should be liberally construed in order to
achieve substantial justice; (4) whether, if the case was not
decided on its merits due to a default or dismissal, the
interest in deciding the case on its merits outweighs the
interest in the finality of the judgment and there is merit
in the claim or defense; (5) whether, if the judgment was
rendered on the merits, the movant had a fair opportunity to
present his claims; (6) whether there are intervening
equities that would make it inequitable to grant relief; and
(7) any other factors relevant to the justice of the judgment
under attack. Id. at 402.
original recommendation to dismiss the petition for lack of
jurisdiction noted that a § 2241 petition for writ of
habeas corpus is the appropriate vehicle to attack the manner
in which a sentence is carried out, and that a § 2255
motion is the appropriate vehicle to challenge the validity
of a federal conviction and sentence, including sentencing
errors. (See doc. 11 at 1-2 (citing Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000)). It found
that Petitioner's claims challenging the application of
the sentencing ...