Thomas v. Warden, NHSP

2017 DNH 102

• Court: District Court, D. New Hampshire
• Decided: June 5, 2017
• Docket: 13-cv-259-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Thomas

v. Civil No. 13-cv-259-LM Opinion No. 2017 DNH 102 Warden, Federal Correctional Institution, Berlin, New Hampshire

O R D E R

Before the court is petitioner Robert Thomas’s “Emergency

Motion to Vacate” (doc. no. 59) this court’s February 15, 2015,

Order (doc. no. 44) denying Thomas’s 28 U.S.C. § 2241 habeas

petition. The respondent filed an objection (doc. no. 60) and

Thomas filed a reply (doc. no. 63) to the objection.

Background

Thomas, a federal prisoner housed at the Federal

Correctional Institution in Berlin, New Hampshire, petitioned

this court for a writ of habeas corpus in 2013. See Doc. No. 1.

In his petition, Thomas asserted that the Bureau of Prisons had

erroneously failed to credit, against his federal sentence, more

than seven years he served in state prison in Illinois pursuant

to a state court criminal conviction.

The respondent moved to dismiss the petition, on the basis

that it was an abuse of the writ, as the claims Thomas asserted therein had already been litigated and decided in a § 2241

action Thomas had previously brought in the Northern District of

West Virginia (“NDWV”) in 2009, in which Thomas had been denied

relief. See Thomas v. Deboo, No. 2:09cv134, 2010 U.S. Dist.

LEXIS 34603, at *2, 2010 WL 1440693, at *1 (N.D.W. Va. Apr. 8,

2010) (accepting R. & R., 2010 U.S. Dist. LEXIS 34781, 2010 WL

1440465 (N.D.W. Va. Mar. 5, 2010)), aff’d, 403 F. App’x 843 (4th

Cir. 2010) (per curiam). This court appointed counsel for

Thomas, and after accepting briefing and oral argument on the

motion to dismiss, issued an Order (doc. no. 44) on February 5,

2015, granting the respondent’s motion to dismiss (doc. no. 21)

and denying Thomas’s petition. The court subsequently denied

Thomas’s motion to reconsider that Order. See Doc. No. 51.

Thomas appealed this court’s denial of his petition to the

First Circuit Court of Appeals. See Doc. No. 46. The First

Circuit affirmed the denial of the petition. See Thomas v.

Schult, No. 15-1186 (1st Cir. Oct. 27, 2016) (doc. no. 57).

Thomas has now filed a motion (doc. no. 59) asking the

court to vacate its February 5, 2015 Order. The respondent

objects. The court construes the motion to vacate (doc. no.

59), supplemented by the factual assertions and argument in

Thomas’s motion for court-appointed counsel (doc. no. 61),1 and

1The request for counsel was denied on May 24, 2017.

2 in his reply (doc. no. 63) to the respondent’s objection, as a

motion for relief from judgment filed pursuant to Rule 60(b).

The court addresses Thomas’s arguments below.

Discussion

I. Applicable Legal Standard

“A movant seeking relief from a judgment under Rule 60(b)

must make a threshold showing of ‘timeliness, a meritorious

claim or defense, a lack of unfair prejudice to the opposing

party, and exceptional circumstances.’” Danielson v. Human, No.

16-2125, 2017 U.S. App. LEXIS 2429, at *1, 2017 WL 544587, at *1

(4th Cir. Feb. 10, 2017) (citation omitted); Bouret-Echevarría

v. Caribbean Aviation Maint. Corp., 784 F.3d 37, 46 (1st Cir.

2015). A party “must give the trial court reason to believe

that vacating the judgment will not be an empty exercise. . . .

[M]otions for relief under Rule 60(b) are not to be granted

unless the movant can demonstrate a meritorious claim or

defense.” Bouret-Echevarría, 784 F.3d at 46 (internal quotation

marks and citations omitted). Rule 60(b) motions “are

‘committed to the court’s sound discretion.’” Dávila-Álvarez v.

Escuela de Medicina Universidad C. del Caribe, 257 F.3d 58, 63

(1st Cir. 2010) (citation omitted).

3 II. Rule 60(b)(1) & (2)

Motions seeking relief under Rule 60(b)(1) (based on

“excusable neglect”), or Rule 60(b)(2) (based on “newly

discovered evidence”) must be filed “no more than a year after

the entry of the judgment or order or the date of the

proceeding.” Fed. R. Civ. P. 60(c)(1). Thomas seeks to vacate

the Order and Judgment entered on February 5, 2015. The one-

year limitations period expired on February 5, 2016. See

Rosaura Bldg. Corp. v. Mun’y of Mayaguez, 778 F.3d 55, 64 (1st

Cir. 2015); Gillis v. Chase, No. 1:16-cv-11451-ADB, 2017 U.S.

Dist. LEXIS 63914, at *7, 2017 WL 1535082, at *3 (D. Mass. Apr.

27, 2017), appeal filed, No. 17-1533 (1st Cir. May 24, 2017).

Petitioner filed his Rule 60(b) motion in 2017, more than a year

after the limitations period expired. His claims asserted under

Rules 60(b)(1) and (2) are therefore time-barred.

III. Rule 60(b)(6)

Rule [60(b)]’s catchall category, subdivision (b)(6), . . . permits a court to reopen a judgment for “any other reason that justifies relief.” Rule 60(b) vests wide discretion in courts, but . . . relief under Rule 60(b)(6) is available only in “extraordinary circumstances.” In determining whether extraordinary circumstances are present, a court may consider a wide range of factors. These may include, in an appropriate case, “the risk of injustice to the parties” and “the risk of undermining the public's confidence in the judicial process.”

4 Buck v. Davis, 137 S. Ct. 759, 777–78 (2017) (citations

omitted).

Thomas claims that his motion brings to the court’s

attention new evidence warranting relief from judgment. What

Thomas identifies here as “new evidence” is a quote from a 1990

Third Circuit case, Barden v. Keohane, 921 F.2d 476 (3d Cir.

1990). Thomas asserts that the Barden quote was not known to

Thomas, the respondent, the NDWV, or this court, when Thomas’s

NDWV case and this action were litigated and decided.

The 1990 legal decision is not new evidence. Thomas cited

Barden in his filings in the NDWV, see Deboo, No. 2:09-cv-00134-

REM-DJJ (N.D.W. Va.) (ECF No. 15, at 6-7), and in his initial

petition in this case, see Pet. (doc. no. 1, at 12). The NDWV

cited Barden in support of its decision, see Deboo, 2010 U.S.

Dist. LEXIS 34781, at *12, 2010 WL 1440465, at *5, and this

court reviewed that decision prior to denying Thomas’s petition

here. Thomas has not pointed to any new evidence or information

that warrants vacating the judgment in this case.

Thomas’s motion here consists of the same legal arguments

he has already asserted and litigated in this case. Thomas

neither identifies any material change in the law since this

court issued its order (and the court is aware of none), nor

points to any legal theory that was not already considered by

the court. Thomas has not identified any meritorious claim he

5 could raise in this matter. See Bouret-Echevarría, 784 F.3d at

46. Further, Thomas has not demonstrated that injustice will

result if his motion is denied. See Buck, 137 S. Ct. at 777-78.

Accordingly, the motion to vacate (doc. no. 59) is denied.

Conclusion

For the foregoing reasons, the petitioner’s motion to

vacate judgment (doc. no. 59) is DENIED.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

June 5, 2017

cc: Robert Thomas, pro se Seth R. Aframe, Esq.