Hazel v. Lves

• Court: District Court, District of Columbia
• Decided: April 23, 2013
• Docket: Civil Action No. 2011-1100
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BOBBY E. HAZEL, ) ) Petitioner, ) ) v. ) Civil Action No. 11-1100 (BAH) ) R. IVES, ) ) Respondent. )

MEMORANDUM OPINION

On October 20, 2011, the Court dismissed this action for a writ of habeas corpus for lack

of jurisdiction. See Mem. Op., ECF No. 3; Order, ECF No. 4. The Petitioner noticed his appeal on

November 7, 2011, ECF No. 7. The Court denied the Petitioner’s motion for relief under Federal

Rule of Civil Procedure 59(e) on November 3, 2011, ECF No. 6, and the Petitioner’s motion for a

certificate of appealability (“COA”) on November 24, 2011, ECF No. 14. On July 12, 2012, the

United States Court of Appeals for the District of Columbia Circuit denied the Petitioner’s

motion for a COA and granted the government’s motion to dismiss the appeal, concluding that

“Petitioner failed to properly exhaust his available remedies in the District of Columbia courts

by filing a timely motion to recall the mandate.” Hazel v. Ives, No. 11-5319 (D.C. Cir. July 12,

2012) (per curiam). On April 16, 2013, the D.C. Circuit denied the Petitioner’s “motion to recall

the mandate” and the government’s motion to strike the motion, and directed the Clerk “to

accept no further submissions from appellant in this closed case.” Id., Order (per curiam).

Meanwhile, on January 23, 2013, this Court permitted to be filed the Petitioner’s

“Motion Pursuant to Federal Rules of Civil Procedure Rule 60(b) to Reopen Court’s Judgment/

1 Memorandum Opinion on October 20th 2011/Denying the Petitioner’s Petition for a Writ of

Habeas Corpus,” ECF No. 20. For the following reasons, the motion will be denied.

Because the Petitioner’s motion under Rule 60(b) comes more than one year after entry

of the final order, the Court may grant relief only if the Petitioner has shown that the judgment

is void or is otherwise invalid or its enforcement inequitable, or for “any other reason that

justifies relief.” Fed. R. Civ. P. 60(b)(4)-(6); see Fed. R. Civ. P. 60(c) (requiring motion under Rule

60(b) to be made “within a reasonable time – and for reasons (1),(2), and (3) no more than a

year after the entry of the judgment or order . . .”); Weisberg v. U.S. Dep’t of Justice, 705 F.2d

1344, 1361 (D.C. Cir. 1983) (the time “runs even during the pendency of an appeal”) (citing

Greater Boston Television Corp. v. FCC, 463 F.2d 268, 280 & n. 22 (D.C. Cir. 1971), cert. denied,

406 U.S. 950 (1972)).

The Petitioner does not argue that the judgment is void or that the judgment is

otherwise invalid or should not apply – nor can he do so convincingly. Hence, the Court will

look only to the “catch-all” provision of Rule 60(b)(6), which “gives courts discretion to vacate

or modify judgments when it is appropriate to accomplish justice.” Norris v. Salazar, 277 F.R.D.

22, 25 (D.D.C. 2011) (quoting United States v. 8 Gilcrease Lane, 668 F. Supp. 2d 128, 130-31

(D.D.C. 2009)) (other citation and internal quotation marks omitted). The Supreme Court has

held that only “extraordinary” circumstances warrant relief under Rule 60(b)(6), Ackermann v.

United States, 340 U.S. 193, 202 (1950), and the D.C. Circuit “has cautioned that it ‘should be

only sparingly used.’ ” Twelve John Does v. District of Columbia, 841 F.2d 1133, 1140 (D.C. Cir.

1988) (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)). In

addition, a "threshold requirement for obtaining relief under Rule 60(b)" is the demonstration

2 of "a meritorious claim or defense to the motion upon which the district court dismissed the

complaint." Murray v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995) (citation and

internal quotation marks omitted). This Aprecondition@ is required to Aprovide the district court

with reason to believe that vacating the judgment will not be an empty exercise or a futile

gesture.@ Id. (citations omitted).

As the Court determined in its November 3, 2011, ruling, no reason exists to reconsider

the dismissal order. Even without the jurisdictional bar, the habeas claim would not survive

since it is predicated on counsel’s ineffectiveness “during collateral post-conviction

proceedings,” which is the very claim 28 U.S.C. § 2254(i) precludes. Mem. Op. at 3; see also

Mem. Op. and Order of Nov. 24, 2011, at 3-4 (determining same in denying COA motion). The

Petitioner has presented nothing new to compel a different result. Hence, the Court will deny

the instant motion for relief under Rule 60(b) and, following the D.C. Circuit’s lead, will enjoin

the Petitioner from filing anything else in this closed case except a notice of appeal. See Int’l

Action Center v. U.S., 100 Fed. Appx. 1 (D.C. Cir. 2004) (noting that “[a] timely appeal may be

taken under Fed. R. App. Proc. 4(a) from a ruling on a Rule 60(b) motion . . .”) (quoting Browder

v. Dir., Dep't of Corr. of Illinois, 434 U.S. 257, 264 (1978)) (alteration in original); U.S. ex rel. Cyr

v. AWL, Inc., 159 F.3d 637 (Table) (D.C. Cir. 1998) (“As a threshold matter, we note that denials

of Rule 60(b) motions . . . are typically final, appealable orders.”) (citation omitted). A separate

Order accompanies this Memorandum Opinion.

/s/ Beryl A. Howell UNITED STATES DISTRICT JUDGE DATE: April 23, 2013