Runnels v. Sheriff, Gregg County

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS No. 6:20-cv-00166 William A. Runnels, Petitioner, v. Sheriff, Gregg County, Respondent.

ORDER Before the court is petitioner William A. Runnels’s motion to vacate judgment and for reinstatement. Doc. 23. Petitioner filed his motion more than 28 days after the entry of the final judgment. See Doc. 20. The motion will be construed as a mo- tion for relief from judgment filed pursuant to Rule 60(b). See Pryor v. U.S. Postal Serv., 769 F.2d 281, 285 (5th Cir. 1985) (char- acterizing a non-specific motion to alter a judgment as a Rule 60(b) motion because the deadline to file under Rule 59(e) had passed). Petitioner seeks to reinstate his case and to have the court void the state court’s judgment of contempt against pe- titioner. See Doc. 23. Because petitioner fails to raise any ex- traordinary or exceptional circumstances justifying relief, pe- titioner’s motion for relief from judgment is denied. Background Petitioner brought this suit under 28 U.S.C. § 2254, chal- lenging his 2018 Gregg County child support contempt pro- ceeding. The case was referred to United States Magistrate Judge K. Nicole Mitchell. The magistrate judge issued a report and recommendation that the petition be dismissed with prejudice and that certifi- cate of appealability be denied. Doc. 9. Petitioner filed objec- tions to the report and recommendation. Doc. 15. After con- ducting a de novo review of the objected-to portion of the magistrate judge’s report, the court accepted the report and

recommendation and dismissed the petition with prejudice. Doc. 19. A certificate of appealability was denied sua sponte. Doc. 20. Standards To succeed on a Rule 60(b) motion, the movant must show that he is entitled to relief from judgment because of • mistake, inadvertence, surprise, or excusable neglect; • newly discovered evidence; • fraud, misconduct, or misrepresentation of an adverse party; • that the judgment is void; • that the judgment has been satisfied; or • any other reason justifying the granting of relief from judgment. Relief will be granted only in “unique circumstances,” and the district court has considerable discretion in determining whether the movant has carried the burden for Rule 60(b) re- lief. Pryor, 769 F.2d at 287; Teal v. Eagle Fleet, Inc., 933 F.2d 341, 347 (5th Cir. 1991). Petitioner has the burden of establishing one of the Rule 60(b) provisions. See Wallace v. Magnolia Family Servs., L.L.C., No. 13-4703, 2015 WL 1321604, at *2 (E.D. La. Mar. 24, 2015) (citing Pryor, 769 F.2d at 286). And “it goes without saying that a Rule 60 motion is not a substitute for an appeal from the underlying judgment.” Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1408 (5th Cir. 1994). Analysis Petitioner states that he is seeking relief under Rule 60(b)(1), (2), (3), (4), and (5). Petitioner’s conclusory state- ments fail to establish exceptional circumstances warranting relief. A. Rule 60(b)(1) Petitioner states that he is entitled to relief under Rule 60(b)(1) because he made a “mistake [by] failing to disclose that he timely sought an appeal on December 20, 2018 to the order of contempt.” Doc. 23 at 2. He claims that he overlooked this detail because he could not access the TX.gov website and view the documents that were filed. He further states that the TXcourts.gov website did not allow him to view any of the documents filed in the appellate court during the period in which he submitted his objections and amended objections to the report and recommendation. Texas’s Sixth Court of Appeals website reflects that peti- tioner filed a notice of appeal on December 21, 2018, in Cause No. 06-18-0112-CV. The appeal was later dismissed for want of prosecution.1 Rule 60(b)(1) provides a party relief from a final judgment, order, or proceeding for “mistake, inadvertence, surprise, or excusable neglect.” As the movant seeking relief under Rule 60(b)(1), petitioner has the burden of establishing the mistake or excusable neglect regardless of whether he is proceeding pro se. See Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (“The burden of establishing excusable neglect is upon the [the mo- vant], even one proceeding pro se.”). Success under Rule 60(b)(1), requires that “the movant make a sufficient showing of unusual or unique circum- stances justifying such relief.” Pryor, 769 F.2d at 286. “Gross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for 60(b)(1) relief,” and a district court abuses its discretion when it “reopen[s] a case under Rule 60(b)(1) when the reason asserted as justifying relief is one at- tributable solely to counsel’s carelessness with or misappre- hension of the law or the applicable rules of court.” Edward H.

1 See Texas Judicial Branch: Sixth Court of Appeals, Case: 06-18-00112- CV, http://www.search.txcourts.gov/Case.aspx?cn=06-18-00112- CV&coa=coa06. Bohlin Co. v. Banning Co., 6 F.3d 350, 357 (5th Cir. 1993). “Even pro se litigants must comply with procedural rules, and igno- rance of the law is not a basis for Rule 60(b)(1) relief.” Vafaiyan v. City of Wichita Falls, 398 F. App’x 989, 990 (5th Cir. 2010). Petitioner was found in contempt on April 4, 2018, by the 124th Judicial District Court of Gregg County, Texas. His jail sentence expired on September 30, 2018. Petitioner’s “mis- take” of failing to inform the court of his December 21, 2018 appeal filing does not affect the judgment here. The December 21, 2018 appeal filing does not establish that he was in custody at the time he filed his § 2254 federal petition in this court. See Maleng v. Cook, 490 U.S. 488, 491-92 (1989) (“Once the sentence imposed for a conviction has completely expired, the collat- eral consequences of that conviction are not themselves suffi- cient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.”). Moreover, the untimely December 18, 2018 appeal filing would not toll the statute of limitations under the AEDPA, as discussed in the report and recommen- dation. Doc. 9 at 5-7. Petitioner’s December 18, 2018 appeal in Cause No. 06-18-0112-CV suffers from the same defect as the June 7, 2018 appeal in Cause No. 12-18-146-CV and the June 7, 2018 appeal in Cause No. 06-18-00038-CV. Petitioner’s mis- take does not qualify as grounds to set aside the judgment un- der Rule 60(b)(1). Petitioner’s request for relief under Rule 60(b)(1) is denied. B. Rule 60(b)(2) In the opening of petitioner’s motion, he states that he is seeking relief under Rule 60(b)(2)’s newly discovered evi- dence provision. But petitioner does not discuss any newly discovered evidence in the body of his motion. Petitioner’s re- quest for relief under Rule 60(b)(2) is, therefore, denied. C. Rule 60(b)(3) Under Rule 60(b)(3), petitioner asserts that he raised an ac- tual innocence claim in his motion to vacate and void judg- ment (Doc. 6), which he intended to be a supplement to his original federal petition. He argues that the magistrate judge did not address petitioner’s “actual innocence claim in the re- port and recommendation.” Doc. 23 at 2-4. Rule 60(b)(3) permits relief from a judgment if the movant demonstrates fraud, misrepresentation, or misconduct by an opposing party. The petitioner must demonstrate “(1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting his case.” Hesling, 396 F.3d at 641. The party moving for Rule 60(b)(3) relief from judgment “has the burden of proving the assertion by clear and convincing evi- dence.” Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978). Petitioner fails to demonstrate that an opposing party be- fore this court engaged in fraud, misrepresentation, or mis- conduct. Moreover, petitioner did not indicate in his motion to vacate (Doc. 6) that he was raising an actual innocence claim or that he intended his motion to be a supplement to his federal petition. Regardless, the court denied petitioner’s ac- tual innocence claim—raised for the first time in his objections to the report and recommendation—in its order adopting the report. Doc. 19 at 3. Petitioner’s request for relief under Rule 60(b)(3) is denied. D. Rule 60(b)(4) Rule 60(b)(4) allows a court to relieve a party from a final judgment if “the judgment is void.” Fed. R. Civ. P. 60(b)(4). The rule only applies “in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010). The Fifth Circuit has found that jurisdictional errors warrant relief under Rule 60(b)(4) where “the initial court lacked subject matter or personal ju- risdiction.” Callon Petroleum Co. v. Frontier Ins., 351 F.3d 204, 208 (5th Cir. 2003). A judgment is not void simply because it is or may have been erroneous. See Espinosa, 559 U.S. at 270. Petitioner does not argue that this court lacked subject matter or personal jurisdiction over his federal habeas peti- tion. He further cannot allege that the court deprived him of an opportunity to be heard. Petitioner’s request for relief un- der Rule 60(b)(4) is denied. E. Rule 60(b)(5) Petitioner seeks relief under Rule 60(b)(5) without expla- nation. Rule 60(b)(5) permits a party to seek relief from a judg- ment that has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or va- cated; or applying it prospectively is no longer equitable. Pe- titioner does not explain how he is entitled to relief under this rule. The court is unaware of any changed circumstances re- garding its judgment that would warrant relief under Rule 60(b)(5). Therefore, petitioner’s request for relief is denied. F. Rule 60(b)(6) Because petitioner is proceeding pro se, the court will ex- amine his motion under Rule 60(b)(6)—a residual clause or catch-all provision—as well. Petitioner asserts that the court erred in finding that there is no direct appeal from the judg- ment finding petitioner in contempt. Petitioner does not pro- vide any case law to support his position. Rule 60(b)(6) is a residual clause used to cover unforeseen contingencies and, “is a means for accomplishing justice in exceptional circumstances.” Steverson v. Global SantaFe 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)); see also Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002) (“Rule 60(b)(6) motions ‘will be granted only if extraordinary circumstances are present.’”) (quoting Batts v. Tow–Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995)). Extraordinary circumstances “may include, in an appropriate case, ‘the risk of injustice to the par- ties’ and ‘the risk of undermining the public’s confidence in the judicial process.’” Buck v. Davis, 137 S. Ct. 759, 778 (2017) (quoting Liljeberg, 486 U.S. at 863-864). Petitioner’s contention derives from Texas’s procedural law regarding contempt proceedings. Texas appellate courts do not have jurisdiction to review contempt proceedings on direct appeal. See In re T.L.K., 90 S.W. 3d 833, 841 (Tex. App.— San Antonio 2002, no pet.). Contempt orders may be reviewed by an application for a writ of habeas corpus if the contem- nor’s liberty has been restrained, or by a petition for a writ of mandamus if the contemnor has not been confined or other- wise had his liberty restrained. See In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (per curiam) (“Contempt orders that do not involve confinement cannot be reviewed by writ of habeas corpus, and the only possible relief is a writ of mandamus.”); Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995); In re Rivas-Luna, 528 S.W.3d 167, 169 (Tex. App.—El Paso, 2017, orig. proceeding) (holding that contempt order, suspended on condition that contemnor pay child support ar- rearages and otherwise comply with trial court’s orders, should be challenged by mandamus). After the state trial court’s order finding petitioner in con- tempt and ordering that he be confined in jail for a period of six months for failing to pay his child support, petitioner failed to move for an application for writ of habeas corpus in the state court. Petitioner’s failure to follow Texas’s proce- dures regarding the proper exhaustion of his state remedies barred his federal petition here. Furthermore, petitioner’s fed- eral petition was barred because he was no longer in custody when he filed his federal petition. Accordingly, petitioner’s final basis for relief is denied. Conclusion Petitioner has not raised any facts or circumstances that would justify relief from the court’s prior judgement. He has failed to carry his burden under any of the Rule 60(b) provi- sions. Petitioner, therefore, is not entitled to relief from the final judgment entered in this case. Petitioner’s Rule 60(b) mo- tion for relief from judgment (Doc. 23) is denied. A certificate of appealability is denied sua sponte. So ordered by the court on November 2, 2020. [Lala BARKER United States District Judge

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