United States District Court, N.D. Texas, Fort Worth Division
BOBBY M. BERRY, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
OPINION AND ORDER
R. MEANS, UNITED STATES DISTRICT JUDGE
the Court is a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 filed by Petitioner, Bobby M. Berry, a
state prisoner, against Lorie Davis, director of the Texas
Department of Criminal Justice, Correctional Institutions
Division, Respondent. After having considered the pleadings
and relief sought by Petitioner, the Court has concluded that
the petition should be denied.
FACTUAL AND PROCEDURAL HISTORY
November 9, 2011, in the 29th Judicial District Court, Palo
Pinto County, Texas, No. 14565, a jury found Petitioner
guilty of aggravated sexual assault and assessed his
punishment at life imprisonment. (Clerk's R. 105, 112,
doc. 10-5.) Petitioner appealed, but the appellate court
dismissed the appeal as meritless. (Mem. Op. 2, doc. 10-2.)
Petitioner also filed two state habeas-corpus applications
challenging his conviction to no avail. (SHR-09 28, doc.
10-31 & Action Taken, doc. 10-26; SHR-10 20,
doc. 10-34 & Action Taken, doc. 10-32.) This is
Petitioner's second federal habeas-corpus petition
attacking the same conviction. The first was withdrawn and
dismissed on October 5, 2017, on Petitioner's own motion.
(Pet. & J., Berry v. Davis, No. 4:16-CV-1173-O, docs. 1
ground, and attempting to rely on Rule 60(b) as a basis for
relief, Petitioner complains of various defects in his state
habeas proceedings and seeks relief due to fraud, misconduct,
or negligence by the state court(s). (Pet. 6-16, doc. 1;
Pet'r's Reply 2-8, doc. 11.) Respondent asserts that
the petition is time-barred under the federal statute of
limitations or, in the alternative, that Petitioner's
claims are not cognizable on federal habeas review.
(Resp't's Preliminary Answer 1, doc. 9.) Without
discussing the merits of Respondent's limitations
defense, the Court concludes that the petition should be
dismissed on the latter ground.
Federal Rules of Civil Procedure govern the procedure in all
civil actions and proceedings in the United States district
courts. Fed.R.Civ.P. 1. A Rule 60(b) motion seeks relief from
a federal judgment and cannot provide Petitioner any
relief on the claims he alleges. See Coleman v.
Davis, No. 4:16-CV-314-Y, 2017 WL 5649606, at *1
(N.D.Tex. March 7, 2017); Dawson v. 291st Judicial Dist.
Court of Dallas Co., Tex., No. 3:18-CV-759-M, 2018 WL
2306989, at *2 (N.D.Tex. Apr. 23, 2018), R & R
adopted, 2018 WL 2299151 (N.D.Tex. May 21, 2018).
Further, Respondent correctly argues that alleged defects or
infirmities in state habeas proceedings are not cognizable on
federal habeas review. See Rudd v. Johnson, 256 F.3d
317, 320 (5th Cir. 2001); Trevino v. Johnson, 168
F.3d 173, 180 (5th Cir. 1999).
reasons discussed herein, the petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is DENIED.
Federal Rule of Appellate Procedure 22 provides that an
appeal may not proceed unless a certificate of appealability
is issued under 28 U.S.C. § 2253. A certificate of
appealability may issue “only if the petitioner has
made a substantial showing of the denial of a constitutional
right.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). “Under this standard, when a district court
denies habeas relief by rejecting constitutional claims on
their merits, ‘the petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.'” McGowen v. Thaler, 675 F.3d 482,
498 (5th Cir. 2012) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)). When the district court
denies the petition on procedural grounds without reaching
the merits, the petitioner must show “that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Id. (quoting Slack, 529 U.S. at 484).
Petitioner has not made a showing that reasonable jurists
would question this Court's resolution of
Petitioner's constitutional claims and/or procedural
rulings. Therefore, a certificate of appealability should not
“shr-09” refers to the
record of Petitioner's state habeas proceeding in wr-23,
041-09; “shr-10” refers to the record of his
state habeas proceeding in wr-23, 041-10. The records are not