United States District Court, D. New Hampshire
McCafferty United States District Judge
the court is petitioner Robert Thomas's “Emergency
Motion to Vacate” (doc. no. 59) this court's
February 15, 2015, Order (doc. no. 44) denying Thomas's
28 U.S.C. § 2241 habeas petition. The respondent filed
an objection (doc. no. 60) and Thomas filed a reply (doc. no.
63) to the objection.
a federal prisoner housed at the Federal Correctional
Institution in Berlin, New Hampshire, petitioned this court
for a writ of habeas corpus in 2013. See Doc. No. 1. In his
petition, Thomas asserted that the Bureau of Prisons had
erroneously failed to credit, against his federal sentence,
more than seven years he served in state prison in Illinois
pursuant to a state court criminal conviction.
respondent moved to dismiss the petition, on the basis that
it was an abuse of the writ, as the claims Thomas asserted
therein had already been litigated and decided in a §
2241 action Thomas had previously brought in the Northern
District of West Virginia (“NDWV”) in 2009, in
which Thomas had been denied relief. See Thomas v.
Deboo, No. 2:09cv134, 2010 U.S. Dist. LEXIS 34603, at
*2, 2010 WL 1440693, at *1 (N.D. W.Va. Apr. 8, 2010)
(accepting R. & R., 2010 U.S. Dist. LEXIS 34781, 2010 WL
1440465 (N.D. W.Va. Mar. 5, 2010)), aff'd, 403 F.
App'x 843 (4th Cir. 2010) (per curiam). This court
appointed counsel for Thomas, and after accepting briefing
and oral argument on the motion to dismiss, issued an Order
(doc. no. 44) on February 5, 2015, granting the
respondent's motion to dismiss (doc. no. 21) and denying
Thomas's petition. The court subsequently denied
Thomas's motion to reconsider that Order. See Doc. No.
appealed this court's denial of his petition to the First
Circuit Court of Appeals. See Doc. No. 46. The First Circuit
affirmed the denial of the petition. See Thomas v.
Schult, No. 15-1186 (1st Cir. Oct. 27, 2016) (doc. no.
has now filed a motion (doc. no. 59) asking the court to
vacate its February 5, 2015 Order. The respondent objects.
The court construes the motion to vacate (doc. no. 59),
supplemented by the factual assertions and argument in
Thomas's motion for court-appointed counsel (doc. no.
61),  and in his reply (doc. no. 63) to the
respondent's objection, as a motion for relief from
judgment filed pursuant to Rule 60(b). The court addresses
Thomas's arguments below.
Applicable Legal Standard
movant seeking relief from a judgment under Rule 60(b) must
make a threshold showing of ‘timeliness, a meritorious
claim or defense, a lack of unfair prejudice to the opposing
party, and exceptional circumstances.'”
Danielson v. Human, No. 16-2125, 2017 U.S. App.
LEXIS 2429, at *1, 2017 WL 544587, at *1 (4th Cir. Feb. 10,
2017) (citation omitted); Bouret-Echevarría v.
Caribbean Aviation Maint. Corp., 784 F.3d 37, 46 (1st
Cir. 2015). A party “must give the trial court reason
to believe that vacating the judgment will not be an empty
exercise. . . . [M]otions for relief under Rule 60(b) are not
to be granted unless the movant can demonstrate a meritorious
claim or defense.” Bouret-Echevarría, 784 F.3d
at 46 (internal quotation marks and citations omitted). Rule
60(b) motions “are ‘committed to the court's
Dávila-Álvarez v. Escuela de Medicina
Universidad C. del Caribe, 257 F.3d 58, 63 (1st Cir.
2010) (citation omitted).
Rule 60(b)(1) & (2)
seeking relief under Rule 60(b)(1) (based on “excusable
neglect”), or Rule 60(b)(2) (based on “newly
discovered evidence”) must be filed “no more than
a year after the entry of the judgment or order or the date
of the proceeding.” Fed.R.Civ.P. 60(c)(1). Thomas seeks
to vacate the Order and Judgment entered on February 5, 2015.
The one-year limitations period expired on February 5, 2016.
See Rosaura Bldg. Corp. v. Mun'y of Mayaguez,
778 F.3d 55, 64 (1st Cir. 2015); Gillis v. Chase,
No. 1:16-cv-11451-ADB, 2017 U.S. Dist. LEXIS 63914, at *7,
2017 WL 1535082, at *3 (D. Mass. Apr. 27, 2017), appeal
filed, No. 17-1533 (1st Cir. May 24, 2017). Petitioner filed
his Rule 60(b) motion in 2017, more than a year after the
limitations period expired. His claims asserted under Rules
60(b)(1) and (2) are therefore time-barred.
Rule [60(b)]'s catchall category, subdivision (b)(6), . .
. permits a court to reopen a judgment for “any other
reason that justifies relief.” Rule 60(b) vests wide
discretion in courts, but . . . relief under Rule 60(b)(6) is
available only in “extraordinary circumstances.”
In determining whether extraordinary circumstances are
present, a court may consider a wide range of factors. These
may include, in an appropriate case, “the risk of