United States District Court, D. New Hampshire
Thomas, pro se
Barbadoro, United States District Judge
Robert Thomas, a federal prisoner presently incarcerated at
the Federal Correctional Institution, in Berlin, New
Hampshire, has filed three post-judgment motions (Doc. Nos.
9-11). In the first such motion (Doc. No. 9), which Thomas
has identified as an “‘Emergency Motion to
Vacate' (and) Appoint Counsel, ” seeking relief
under Rule 60(b)(2) of the Federal Rules of Civil Procedure,
Thomas asks this court to vacate its May 15, 2018 Order (Doc.
No. 6) (“May 15 Order”) approving the magistrate
judge's May 7, 2018 Report and Recommendation (Doc. No.
4) (“May 7 R&R”) and dismissing this action.
In the other two motions (Doc. Nos. 10, 11), Thomas seeks an
evidentiary hearing and expedited ruling.
filed this action in November 2017, seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. The court dismissed
Thomas's § 2241 petition (Doc. No. 1), without
prejudice to Thomas's ability to assert his claims in a
court of competent jurisdiction, finding that this court
lacked subject matter jurisdiction over the petition.
judgment entered in this case, Thomas filed a motion (Doc.
No. 8) asking the court to either allow him to amend his
petition, or to vacate the May 7 R&R and May 15 Order.
The court denied Thomas's motion, stating: “The
motion to amend does not address the fact that  the court
lacks subject matter jurisdiction.” May 22, 2018 Order.
instant motion, Thomas seeks to vacate the judgment in this
case to enable him to assert new claims for relief from his
conviction and sentence. Specifically, Thomas alleges that:
1) he is entitled to relief under a new rule of federal
constitutional law established by the Supreme Court's
recent decision in McCoy v. Louisiana, 138 S.Ct.
1500 (2018); and 2) the guilty plea underlying his present
incarceration should be vacated because the federal Bureau of
Prisons' wrongful calculation of his sentence constitutes
a breach of his original plea agreement and thus violates
Thomas's Fifth Amendment right to due process.
brings his motion under Rule 60(b)(2), which provides relief
for litigants who present “newly discovered
evidence.” Fed.R.Civ.P. 60(b)(2). Construed liberally,
however, the motion is more appropriately characterized as
arising under Rule 60(b)(6), the rule's catch-all
provision which allows courts to grant relief from a judgment
for “any reason that justifies relief” not
otherwise specified in Rule 60(b)(1)-(5).
60(b) allows a party to seek relief from a final judgment,
and request reopening of his case, under a limited set of
circumstances.” Gonzalez v. Crosby, 545 U.S.
524, 528 (2005). However, “[a] Rule 60(b) motion should
be treated as a second or successive § 2255 motion
‘if it in substance or effect asserts or reasserts a
federal basis for relief from the petitioner's underlying
conviction.'” United States v. McKinney,
No. 18-3099, ___ Fed.Appx. ___, 2018 U.S. App. LEXIS 22024,
at *3, 2018 WL 3769223, at * 2 (10th Cir. Aug. 8, 2018)
(citation omitted); see also Gonzalez, 545 U.S. at
532 (where “a Rule 60(b) motion advances one or more
‘claims,' . . . seek[ing] to add a new ground for
relief, ” it should be treated as an application for
Thomas seeks to add two new federal grounds for relief to
this action, his motion seeks relief available, if at all, in
a motion filed under 28 U.S.C. § 2255 in the Northern
District of Illinois, where Thomas was convicted and
sentenced. Thomas's motion for post-judgment relief (Doc.
No. 9) is therefore denied. The denial of Thomas's motion
renders his requests for the appointment of counsel (Doc. No.
9), for an evidentiary hearing (Doc. No. 10), and for an
expedited ruling (Doc. No. 11), moot. Those motions are
denied on that basis.
case, and the instant motions, are the most recent of
Thomas's numerous challenges to his 2001 conviction and
sentence. Thomas has filed this action and Thomas v.
Schult, No. 13-cv-259-LM (D.N.H.) (“Schult”)
in the District of New Hampshire, seeking relief from his
conviction and sentence. Both actions were initiated as
§ 2241 petitions which were ultimately dismissed. In
both cases, Thomas filed repetitive requests for
reconsideration and/or to vacate the judgment of dismissal.
In each instance, the court denied Thomas's request.
review of PACER indicates that, in addition to his cases in
this court, Thomas has filed repeated challenges to his
conviction and sentence in the Northern District of Illinois,
the Northern District of West Virginia, and in the First,
Fourth, and Seventh Circuit Courts of Appeals. The Seventh
Circuit has twice sanctioned Thomas in response to his
repetitive and continued filing of frivolous challenges to
his conviction and sentence, and Thomas remains subject to
that Court's most recent sanction. See Thomas v.
United States, No. 16-3064 (7th Cir. Feb. 23, 2017) (ECF
No. 10) (Order discussing ...