United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE
the Court is a Motion for Relief from Order Under Federal
Rules of Civil Procedure Rule 60(b)(1) & (6)
(Rec. Doc. 17) filed by Petitioner, Michael
Pennington. In the motion, Petitioner moves for relief from
the Court's order (Rec. Doc. 14) adopting the Magistrate
Judge's Report and Recommendation (“R&R”)
and dismissing with prejudice Petitioner's petition for
writ of habeaus corpus under 28 U.S.C. § 2254.
Petitioner argues that the Court mistakenly found that he did
not file an objection to the Magistrate Judge's R&R
when it adopted the same, which warrants relief under Federal
Rule of Civil Procedure 60(b). Having considered the motion
and legal memoranda, the record, and the applicable law, the
Court finds that the motion should be
February 3, 2012, Petitioner was convicted of second degree
murder in Tangipahoa Parish, Louisiana. (Rec. Doc. 12 at 3.)
The state trial court sentenced him to life in prison without
benefit of parole, probation, or suspension of sentence.
Id. at 4. After exhausting the state court remedies,
Petitioner filed a timely pro se petition for writ
of habeas corpus in this Court on July 12, 2016. (Rec. Doc.
1.) The state filed a response arguing that Petitioner's
claims were meritless and that he was not entitled to federal
habeas relief. (Rec. Doc. 10.) On July 20, 2017, Magistrate
Judge Wilkinson issued his R&R recommending that the
federal application for habeas corpus relief be dismissed
with prejudice. (Rec. Doc. 12.) Any objection to the R&R
was due no later than August 3, 2017. Id. On August
10, 2017, the Court issued an order adopting the R&R and
dismissing Petitioner's habeas petition with prejudice.
(Rec. Doc. 14.) The Clerk's Officer electronically filed
the Court's order into the docket the following day,
August 11, 2017. That same day, the Court for the first time
became aware of Petitioner's objections to the R&R
when they were electronically filed into the docket.
Petitioner claims he scanned and emailed the objections from
Louisiana State Penitentiary on August 8, 2017. It appears
that the Clerk's Office had received Petitioner's
objections on August 8, 2017, but did not electronically file
them until August 11, 2017. (Rec. Doc. 13.)
August 22, 2017, Petitioner appealed to the United States
Court of Appeals for the Fifth Circuit. (Rec. Doc. 18.) That
same day, Petitioner filed the instant Motion for Relief
from Order Under Federal Rules of Civil Procedure Rule
60(b)(1) & (6). (Rec. Doc. 17.) On November 13,
2017, the Fifth Circuit dismissed the appeal for want of
prosecution. (Rec. Doc. 20.) On January 9, 2018, the Fifth
Circuit granted appellant's motion to reinstate the
appeal. (Rec. Doc. 21.)
60(b) provides that a court, “[o]n motion and just
terms, ” may “relieve a party or its legal
representative from a final judgment, order, or
proceeding” due to:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(1)-(6). As the moving party, Petitioner
has the burden to show why the Court should vacate its prior
judgment. The determination of whether Petitioner has
satisfied his burden lies within this Court's sound
discretion. See Rocha v. Thaler, 619 F.3d 387, 400
(5th Cir. 2010).
initial matter, the Court must determine whether it has
jurisdiction to rule on Petitioner's Rule 60(b) motion.
Generally, district courts lack the power to issue a Rule
60(b) motion after an appeal has been docketed and is pending
before the Court of Appeals. See Fed.R.Civ.P. 62.1
(Advisory Committee Notes) (“After an appeal has been
docketed and while it remains pending, the district court
cannot grant a Rule 60(b) motion without a remand”).
“Once the notice of appeal has been filed, while the
district court may consider or deny a Rule 60(b) motion . . .
it no longer has the jurisdiction to grant such a motion
while the appeal is pending.” Shepherd v. Int'l
Paper Co., 372 F.3d 326, 329 (5th Cir. 2004). However,
“[w]hen a Rule 60(b) motion is filed while an appeal is
pending, [the Fifth Circuit] has expressly recognized the
power of the district court to consider on the merits and
deny a 60(b) motion filed after a notice of appeal, because
the district court's action is in furtherance of the
appeal.” Willow v. Cont'l Oil Co., 746
F.2d 1041, 1046 (5th Cir. 1984), on reh'g, 784
F.2d 706 (5th Cir. 1986) (emphasis added). In the event that
the district court is inclined to grant the Rule 60(b)
motion, “the appellant should then make a motion in the
Court of Appeals for a remand of the case in order that the
district court may grant such motion.” Id. at
has a pending appeal to the Fifth Circuit in this case. If
the Court determines that Petitioner's motion raises a
substantial issue or that it intends to grant the motion, the
Court will instruct Petitioner to request a remand. However,
if the Court finds no substantial issue exists, it will deny
argues that the Court mistakenly found in its order that he
did not file an objection to the Magistrate Judge's
R&R, which warrants relief under Federal Rule of Civil
Procedure 60(b). As outlined above, Petitioner is correct
that the Court mistakenly found in its order dismissing his
petition that he did not file an objection to the R&R.
The record shows that Petitioner sent and the Clerk's
Office received Petitioner's objection on August 8, 2017,
two days before the Court's order on August 10, 2017.
However, Petitioner is incorrect in claiming that his
objection was timely filed. The Magistrate Judge
explicitly stated in the R&R that objections were due on
August 3, 2017. Thus, because Petitioner did not file an
objection until August 8, 2017, the objections are untimely.
The Fifth Circuit has stated that “district courts need
not consider late objections” to an R&R. Scott
v. Alford, 94-40486, 1995 WL 450216 at *2 (5th Cir.
1995). It is within the district court's discretion
whether to consider late-filed objections or not. See
also Loredo v. Barnhart, 210 F. App'x. 417, 418 n.1
(5th Cir. 2006) (quoting Rodriguez v. Bowen, 857
F.2d 275, 276-77 (5th Cir. 1988) (finding it within the
district court's discretion whether to consider
late-filed objections)). The Court, in its discretion, will
not consider Petitioner's untimely objections and finds
that Petitioner's motion raises no substantial issue.
IT IS HEREBY ORDERED that Petitioner's
Motion for Relief from Order Under Federal Rules of Civil
Procedure Rule ...