United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING RULE 60(B)
E. HUDSON, SENIOR UNITED STATES JUDGE.
Memorandum Opinion and Order entered on July 26, 2012, the
Court denied a 28 U.S.C. § 2255 Motion filed by
Petitioner (ECF Nos. 186, 187). Since that date, Petitioner
has inundated the Court with frivolous filings. On January
16, 2018, the Court received a Motion to Vacate Judgment
Pursuant to Fed. R. Civ. Proc. § 60(b)(6), and Motion to
Reopen 28 U.S.C. § 2255 Proceedings. ("Rule 60(b)
Motion," ECF No. 236.) On March 12, 2018, the Court
received a Motion for Leave to File an Amended Motion to
Vacate Judgment with the attached amended motion under Rule
60(b). ("Motion for Leave to File," ECF No. 239.)
On April 11, 2018, Petitioner also filed a
Motion to Consolidate the Rule 60(b) Motion with the amended
motion. ("Motion to Consolidate," ECF No. 242.) As
a preliminary matter, the Motion to Consolidate (ECF No. 242)
will be denied because, as discussed below, the Motion for
Leave to File will be denied as futile.
Rule 60(b) Motion, Petitioner argues that under Rule 60(b)(6)
the Court should re-open and reconsider its prior denial of
his § 2255 Motion due to alleged errors of habeas
counsel. A party seeking relief under Federal Rule of Civil
Procedure 60(b) must make a threshold showing of
"timeliness, a meritorious defense, a lack of unfair
prejudice to the opposing party, and exceptional
circumstances." Dowell v. State Farm Fire & Cas.
Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993) (quoting
Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984)).
After a party satisfies this threshold showing, "he [or
she] then must satisfy one of the six specific sections of
Rule 60(b)." Id. (citing Werner, 731
F.2d at 207).
Federal Rule of Civil Procedure 60(c)(1), Petitioner was
required to file his motion within a reasonable time after
the entry of the July 26, 2012 Memorandum Opinion and Order.
Fed.R.Civ.P. 60(c)(1) ("A motion under Rule 60(b) must
be made within a reasonable time-and for reasons (1), (2),
and (3) no more than a year after the entry of the judgment
or order or the date of the proceeding.").
Petitioner's Rule 60(b) Motion, filed more than fifteen
years after the entry of the challenged judgment, was not
filed in a reasonable time. See McLawhorn v. John W.
Daniel & Co., Inc., 924 F.2d 535, 538 (4th Cir.
1991) ("We have held on several occasions that a Rule
60(b) motion is not timely brought when it is made three to
four months after the original judgment and no valid reason
is given for the delay." (citing Cent. Operating Co.
v. Utility Workers of Am., 491 F.2d 245 (4th Cir. 1974);
Consol Masonry & Fireproofing, Inc. v. Wagman Constr.
Corp., 383 F.2d 249 (4th Cir. 1967))). Moreover, Rule
60(b) is an extraordinary remedy requiring a showing of
exceptional circumstances. Mayfield v. Nat'l
Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369,
378 (4th Cir. 2012) (citing Ackermann v. United
States, 340 U.S. 193, 202 (1950)).
fails to offer any persuasive argument as to why this Court
should find that his Rule 60(b) Motion was filed within a
reasonable time. Cf. Fortune v. Clarke, 712
Fed.Appx. 296, 297 (4th Cir. 2018) (explaining that
determination of timeliness of a Rule 60(b) motion is
discretionary not jurisdictional). Moreover, "[a] motion
under [Rule] 60(b)(6) may not be granted absent
'extraordinary circumstances.'" MLC Auto.,
LLC v. Town of Southern Pines, 532 F.3d 269, 277 n.5
(4th Cir. 2008) (quoting Reid v. Angelone, 369 F.3d
363, 370 (4th Cir. 2004)). Petitioner fails to demonstrate
that extraordinary circumstances warrant review of the
Court's dismissal of his § 2255 Motion or that he
has a meritorious claim. Accordingly, the Rule 60(b) Motion
(ECF No. 236) will be denied.
amended motion under Rule 60(b) attached to the Motion for
Leave to File is also untimely and allowing any amendment
would be futile. Accordingly, the Motion for Leave to File
(ECF No. 239) will be denied. A certificate of appealability
will be denied.
appropriate Order will accompany this Memorandum Opinion.
 Federal Rule of Civil Procedure 60(b)
provides, in pertinent part:
(b) Grounds for Relief from a Final Judgment, Order,
or Proceeding. On motion and just terms, the court may
relieve a party or its legal representative from a final
judgment, order, or proceeding for the following
(4) the judgment is void;
(6) any other reason that justifies relief.