United States District Court, E.D. Virginia, Norfolk Division
S. DAVIS, CHIEF UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's Motion for Further Action, ECF
No. 45, regarding a previously dismissed Amended Petition for
a Writ of Habeas Corpus filed by Petitioner pursuant to 28
U.S.C. § 2254, ECF No. 7. Therein, Petitioner protests
this Court's dismissal of three of the claims raised in
the Petition on procedural default grounds, a disposition
which Petitioner argues was based on fraud perpetrated upon
the Court by Mr. David M. Uberman, Assistant Attorney
General, counsel for Respondent Harold W. Clarke
("Respondent"). The Motion was referred to a United
States Magistrate Judge for report and recommendation
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and (C) and Local Civil Rule 72 of the Rules of the United
States District Court for the Eastern District of Virginia.
Magistrate Judge's Report and Recommendation filed
October 24, 2018, recommends that Petitioner's Motion for
Further Action be DENIED. ECF No. 48 at 17. On November 14,
2018, the Petitioner timely filed objections to the Report
and Recommendation. ECF No. 50. On November 21, 2018, the
Respondent, by counsel, Rachel Lynsie Yates,  filed a response
to Petitioner's objections. ECF No. 52. On December 10,
2018, Petitioner filed a reply "objecting to Assistant
Attorney General, Ms. Rachel L. Yates, Motion to note
appearance of Counsel" and the "response to the
Petitioner's objection motion to the report and
recommendation[. ]" ECF No. 54. In addition, Petitioner
requests that this Court "hold off on it's [sic]
ruling of it's [sic] final order until Mr. Uberman
answer's [sic] his Interrogatory." Id.
labeled as a Motion for Further Action, Petitioner appears to
make a Rule 60(b) motion, seeking relief from the Court's
prior judgment or order. Federal Rule of Civil Procedure
60(b) lists the grounds under which a court may grant relief
from a final judgment or order. These grounds are:
(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.
Civ. P. 60(b). Specifically, Petitioner alleges fraud by
opposing counsel, which falls under Rule 60(b)(3). Federal
Rule of Civil Procedure 60(c)(1) further states that a Rule
60(b) motion must be made within "a reasonable
time" and for grounds (1), (2), or (3), within one year
from the date of the final judgment. Fed.R.Civ.P. 60(c)(1).
"[T]he movant bears the burden of showing
timeliness." Moses v. Joyner, 815 F.3d 163, 166
(4th Cir. 2016) (citing Werner v. Carbo, 731 F.2d
204, 206-07 & n. 1 (4th Cir. 1984).
Petitioner's motion was filed on July 17, 2018, more than
one year after the date this Court issued its "Final
Order" on June 14, 2016 on his § 2254 petition. Any
60(b)(3) motion is untimely. Furthermore, even if
Petitioner's motion is viewed as falling under Rule
60(b)(6), which is not strictly limited to one year, such a
motion must still be presented within "a reasonable
time" of the original judgment or order. Here, the
Petitioner waited for over two years after this Court's
final order and approximately 18 months after the Fourth
Circuit's denial of a certificate of appealability, which
is not reasonable. His motion is therefore
DISMISSED as untimely pursuant to Rule
60(c). See Moses v. Joyner, 815 F.3d 163, 167 (4th
Cir. 2016) (noting that the "reasonable time"
standard affords "considerable latitude" to
district courts, but further highlighting the importance of
applying such standard in a way that guards the critical
principle of finality in criminal cases); see, e.g.,
McLawhorn v. John W. Daniel & Co., 924 F.2d
535., 538 (4th Cir. 1991) (holding that a Rule 60(b) motion
filed three and a half months after a summary judgment order
was untimely); United States v. Peters, No.
3:08crl86, 2018 WL 5778399, at *2 (E.D. Va. Nov. 2, 2018)
(finding Rule 60(b) motion filed more than two years after
the entry of the challenged judgment was untimely).
the Court, having reviewed the record and examined the
objections filed by Petitioner to the Report and
Recommendation, and having made de novo findings
with respect to the portions objected to, does hereby
ADOPT and APPROVE the
findings and recommendations set forth in the Report and
Recommendation filed October 24, 2018 with respect to the
merits of Petitioner's Motion for Further Action. The
motion is, therefore, DENIED on the merits.
on February 4, 2019, Petitioner filed a ''Motion for
Further Action Inquiry," which requests that the Court
order discovery and grant Petitioner an evidentiary hearing.
ECF No. 55. Petitioner presents the same arguments for an
evidentiary hearing as in his original motion and objections
to the Report and Recommendation. Petitioner further argues
that only Mr. Uberman may file on behalf of the Respondent.
See ECF. No. 54. A party has a "right to freely
choose counsel." Tessier v. Plastic Surgery
Specialists, Inc., 731 F.Supp. 724, 729 (E.D. Va. 1990).
Thus, there is no reason Respondent cannot be represented by
Ms. Yates, and no reason to defer any final order until Mr.
Uberman is able to file a response on Respondent's
behalf. As the Court has already considered Petitioner's
other arguments to compel discovery and hold an evidentiary
hearing, the motion is DENIED.
Petitioner may appeal from the judgment entered pursuant to
this Final Order by filing a written notice of
appeal with the Clerk of this court, United States
Courthouse, 600 Granby Street, Norfolk, Virginia 23510,
within thirty (30) days from the date of entry of such
Petitioner has failed to demonstrate a substantial showing of
the denial of a constitutional right, and therefore, the
Court declines to issue any certificate of appealability
pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure. See Miller-El v. Cockrell, 537 U.S. 322,
Clerk shall mail a copy of this Final Order to Petitioner and
to counsel of record for the Respondent.