United States District Court, W.D. Louisiana, Lake Charles Division
T. TRIMBLE, JR. UNITED STATES DISTRICT JUDGE.
the court is a Motion to Vacate an Illegal Sentence (Rec.
Doc. 138), a Motion to Reopen/Reinstate Case (Rec. Doc. 139),
and a Motion for Recusal (Rec. Doc. 139) filed by the pro
se petitioner Donald Runnels. For the following reasons,
the Motion to Vacate an Illegal Sentence will be DISMISSED
WITHOUT PREJUDICE for lack of jurisdiction, and the Motion to
Reopen/Reinstate Case and Motion for Recusal will be DENIED.
was charged with and convicted of simple burglary and theft
of less than $500 in 2011. After appealing his conviction in the
Louisiana state court system, Runnels filed a petition for a
writ of habeas corpus before this court in March
2014. In his petition, he argued that his
counsel was ineffective, that the sentence was excessive,
that the sentence was illegal, that the state failed to
inform him about a witness, that the state failed to prove
all elements of the crime, that the jury was prejudiced, that
the trial court failed to grant a motion for production of
court records, that the jury was deceitful, and that he was
being held illegally because the trial court rescinded his
sentence. After reviewing his petition, the court
found that it was time-barred and dismissed it with prejudice
in December 2015.
he does not explicitly state under what grounds he moves to
vacate his sentence, the motion best fits the relief
available under 28 U.S.C. § 2254 because he argues that
the court erred at the time of sentencing by violating the
ex post facto clause. Because he could have already
raised this claim in his prior petition for a writ of habeas
corpus, the current motion is a successive habeas
petition. Runnels is required to seek authorization
from the Fifth Circuit Court of Appeals under 28 U.S.C.
§ 2244(b)(1) to file a successive habeas petition, and
he has not done so. Because he does not have authorization
from the Fifth Circuit, this court does not have subject
matter jurisdiction over the claim. The district court can
either transfer an unauthorized successive petition to the
Fifth Circuit pursuant to 28 U.S.C. § 163 lor dismiss
the petition for lack of subject matter
jurisdiction. This court will DISMISS the Motion to
Vacate for lack of subject matter jurisdiction.
Motion to Reinstate/Reopen Case and Motion for Recusal ask
for relief based on unfounded assertions. The court considers
this motion under Rule 60(b)(1) and 60(b)(6) of the Federal
Rules of Civil Procedure. A Rule 60(b)(1) motion should be
made "no more than a year after the entry of the
judgment." The petitioner brought his motion
approximately 17 months after the court entered a judgment
dismissing his petition as time-barred, therefore to the
extent that it is a Rule 60(b)(1) motion, it is untimely and
will be dismissed. To the extent that the motion is brought
under Rule 60(b)(6), the petitioner must show
"extraordinary circumstances" that justify
relief. Runnels has failed to do so. His original
petition for a writ of habeas corpus was considered by the
court and was dismissed after the court determined that it
was time-barred. Runnels's bare assertions that Judge
Minaldi did not properly consider his petition have no basis.
As such, his motions will be denied.
reasons described above, the petitioner's Motion to
Vacate an Illegal Sentencewill be DISMISSED for lack of
subject matter jurisdiction. The petitioner's Motion to
Reopen/Reinstate Case and Motion for Recusal will be
DONE AND SIGNED.
 Report and Recommendation (Rec. Doc.
102), p. 2.
 Petition for Writ of Habeas Corpus and
Amendments (Rec. Docs. 1, 10, 11, 19, 21, 32, 35, 46, 49, 51,
54, 56, 58, 66, 69, 70, 76, 89, 90, 93,
 Report and Recommendation (Rec. Doc.
102), p. ...