Robert Thomas v. Robert Hazelwood, Warden, FCI Berlin

2018 DNH 251

• Court: District Court, D. New Hampshire
• Decided: December 14, 2018
• Docket: 17-cv-571-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Thomas

v. Civil No. 17-cv-571-PB Opinion No. 2018 DNH 251 Robert Hazelwood, Warden, FCI Berlin

O R D E R

Petitioner, Robert Thomas, a federal prisoner presently

incarcerated at the Federal Correctional Institution, in Berlin,

New Hampshire, has filed three post-judgment motions (Doc. Nos.

9-11). In the first such motion (Doc. No. 9), which Thomas has

identified as an “‘Emergency Motion to Vacate’ (and) Appoint

Counsel,” seeking relief under Rule 60(b)(2) of the Federal

Rules of Civil Procedure, Thomas asks this court to vacate its

May 15, 2018 Order (Doc. No. 6) (“May 15 Order”) approving the

magistrate judge’s May 7, 2018 Report and Recommendation (Doc.

No. 4) (“May 7 R&R”) and dismissing this action. In the other

two motions (Doc. Nos. 10, 11), Thomas seeks an evidentiary

hearing and expedited ruling.

Background

Thomas filed this action in November 2017, seeking a writ

of habeas corpus pursuant to 28 U.S.C. § 2241. The court

dismissed Thomas’s § 2241 petition (Doc. No. 1), without

prejudice to Thomas’s ability to assert his claims in a court of competent jurisdiction, finding that this court lacked subject

matter jurisdiction over the petition.

After judgment entered in this case, Thomas filed a motion

(Doc. No. 8) asking the court to either allow him to amend his

petition, or to vacate the May 7 R&R and May 15 Order. The

court denied Thomas’s motion, stating: “The motion to amend does

not address the fact that [] the court lacks subject matter

jurisdiction.” May 22, 2018 Order.

In his instant motion, Thomas seeks to vacate the judgment

in this case to enable him to assert new claims for relief from

his conviction and sentence. Specifically, Thomas alleges that:

1) he is entitled to relief under a new rule of federal

constitutional law established by the Supreme Court’s recent

decision in McCoy v. Louisiana, 138 S. Ct. 1500 (2018); and 2)

the guilty plea underlying his present incarceration should be

vacated because the federal Bureau of Prisons’ wrongful

calculation of his sentence constitutes a breach of his original

plea agreement and thus violates Thomas’s Fifth Amendment right

to due process.

Discussion

Thomas brings his motion under Rule 60(b)(2), which

provides relief for litigants who present “newly discovered

evidence.” Fed. R. Civ. P. 60(b)(2). Construed liberally,

however, the motion is more appropriately characterized as

2 arising under Rule 60(b)(6), the rule’s catch-all provision

which allows courts to grant relief from a judgment for “any

reason that justifies relief” not otherwise specified in Rule

60(b)(1)-(5).

“Rule 60(b) allows a party to seek relief from a final

judgment, and request reopening of his case, under a limited set

of circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 528

(2005). However, “[a] Rule 60(b) motion should be treated as a

second or successive § 2255 motion ‘if it in substance or effect

asserts or reasserts a federal basis for relief from the

petitioner’s underlying conviction.’” United States v.

McKinney, No. 18-3099, ___ F. App’x ___, 2018 U.S. App. LEXIS

22024, at *3, 2018 WL 3769223, at * 2 (10th Cir. Aug. 8, 2018)

(citation omitted); see also Gonzalez, 545 U.S. at 532 (where “a

Rule 60(b) motion advances one or more ‘claims,’ . . . seek[ing]

to add a new ground for relief,” it should be treated as an

application for habeas relief).

Because Thomas seeks to add two new federal grounds for

relief to this action, his motion seeks relief available, if at

all, in a motion filed under 28 U.S.C. § 2255 in the Northern

District of Illinois, where Thomas was convicted and sentenced.

Thomas’s motion for post-judgment relief (Doc. No. 9) is

therefore denied. The denial of Thomas’s motion renders his

requests for the appointment of counsel (Doc. No. 9), for an

3 evidentiary hearing (Doc. No. 10), and for an expedited ruling

(Doc. No. 11), moot. Those motions are denied on that basis.

Abusive Litigation Practices

This case, and the instant motions, are the most recent of

Thomas’s numerous challenges to his 2001 conviction and

sentence. Thomas has filed this action and Thomas v. Schult,

No. 13-cv-259-LM (D.N.H.) (“Schult”) in the District of New

Hampshire, seeking relief from his conviction and sentence.

Both actions were initiated as § 2241 petitions which were

ultimately dismissed. In both cases, Thomas filed repetitive

requests for reconsideration and/or to vacate the judgment of

dismissal. In each instance, the court denied Thomas’s request.

A review of PACER indicates that, in addition to his cases

in this court, Thomas has filed repeated challenges to his

conviction and sentence in the Northern District of Illinois,

the Northern District of West Virginia, and in the First,

Fourth, and Seventh Circuit Courts of Appeals. The Seventh

Circuit has twice sanctioned Thomas in response to his

repetitive and continued filing of frivolous challenges to his

conviction and sentence, and Thomas remains subject to that

Court’s most recent sanction. See Thomas v. United States, No.

16-3064 (7th Cir. Feb. 23, 2017) (ECF No. 10) (Order discussing

Thomas’s litigation history, imposing $5000 fine, and barring

4 Thomas from filing any civil suit in the courts of the Seventh

Circuit until fine is paid in full).

In both this case and in Schult, the court has explained to

Thomas a number of times that this court is not the appropriate

venue for Thomas to assert a new challenge to his conviction or

sentence which is appropriately asserted under § 2255. His

repetitive efforts to bring such claims in this court amount to

frivolous and vexatious litigation. Thomas is warned that any

further efforts to bring such claims in this court may result in

the court imposing sanctions which may include, among other

things, restrictions on Thomas’s ability to bring litigation in

this court in the future.

Conclusion

For the foregoing reasons, the court now directs as

follows:

1. Thomas’s motion (Doc. No. 9) to vacate this

court’s Order dismissing his case is DENIED, without

prejudice to his ability to seek relief in a court of

appropriate jurisdiction.

2. Thomas’s motions for an evidentiary hearing (Doc.

No. 10), and his motion to expedite (Doc. No. 11) are

DENIED as moot.

5 3. Thomas is warned that any further efforts to

challenge the validity of his conviction and sentence in

this court may result in the court imposing sanctions.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

December 14, 2018

cc: Robert Thomas, pro se