Dority v. Roy, No. 5:2009cv00057 - Document 17 (E.D. Tex. 2012)
Court Description: MEMORANDUM OPINION AND ORDER, denying 16 MOTION from judgment pursuant to Rule 60 filed by Ricky Leon Dority. Signed by Judge David Folsom on 1/13/12. (mrm, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION RICKY LEON DORITY § VS. § WARDEN KEITH ROY § CIVIL ACTION NO. 5:09cv57 MEMORANDUM OPINION AND ORDER Petitioner Ricky Leon Dority, an inmate confined at the Federal Correctional Institution in Texarkana, Texas, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Discussion A final judgment was entered on March 8, 2010, dismissing the above-styled action. Petitioner appealed the dismissal to the Fifth Circuit Court of Appeals. On December 28, 2010, the Fifth Circuit affirmed the judgment of the District Court. Petitioner s petition for writ of certoriari to the Supreme Court was denied on July 1, 2011. Petitioner subsequently filed this motion for reconsideration of the judgment. Analysis Rule 60, FED. R. CIV. P., provides in relevant 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 reasons: (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 ..., 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. (c) Timing and Effect of the Motion. (1) Timing. 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. FED. R. CIV. P. 60(b) and (c). Petitioner s motion for relief from the judgment was not filed until more than seventeen (17) months after the judgment was entered. Further, petitioner s motion was not filed until after his petition for writ of certiorari had been denied by the Supreme Court. As this petitioner has already challenged the dismissal of this action to the Supreme Court, this court is not at liberty to entertain petitioner s motion for relief from judgment. ORDER . For the reasons set forth above, petitioner s motion for reconsideration should be denied. It is therefore, ORDERED that petitioner's motion for relief from judgment is DENIED. SIGNED this 13th day of January, 2012. ____________________________________ DAVID FOLSOM UNITED STATES DISTRICT JUDGE 2
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