Rothenberg v. Quarterman Rothenberg v. Quarterman (S.D. Tex., 2011)

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ERIC LEE ROTHENBERG, Petitioner, v. NATHANIEL QUARTERMAN, Respondent.

CIVIL ACTION G-08-0199

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

Dated: July 28, 2011

        On March 31, 2009, this court granted the respondent's motion to dismiss the petition as time-barred. (Docket Entry No. 12). On February 28, 2011, the petitioner filed a motion for relief from judgment. (Docket Entry No. 23).

        Federal Rule of Civil Procedure 60(b) provides that:

FED. R. CIV. P. 60(b). Rule 60(b)(1), (2) and (3) motions may be filed up to one year after the

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judgment is entered, and "within a reasonable time" for all remaining grounds. See FED. R. CIV. P. 60(b). Under Rule 60(b)(6), a court may vacate a judgment only in "extraordinary circumstances. " Liljeberg v. Health Servs. Acquisition Corp 486 U.S. 847, 863-64 (1988).

        In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court explained how Rule 60(b) motions are to be analyzed in Section 2254 cases. The Fifth Circuit has summarized the Supreme Court's ruling as follows:

Ruiz v. Quarterman, 504 F. 3d 523, 526 (5th Cir. 2007).

        To the extent that the Petitioner argues that there is additional evidence to support his claims, or is raising a new claim, he is seeking to file a successive petition without the permission from the Fifth Circuit Court of Appeals required by AEDPA. This court lacks jurisdiction to consider such

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a claim. Title 28 U.S.C. Section 2244(b)(3)(A) provides that before a second or successive application permitted by section 2244(b)(2) is filed in the district court, "the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. " Permission may be obtained only by filing, with the appropriate federal appellate court, a motion for authorization to file a successive habeas petition with the district court. In re Epps, 127 F. 3d 364 (5th Cir. 1997)(detailing the procedure for obtaining authorization from the appellate court).

        This court previously determined that the Petitioner's claims are barred by limitations. The petitioner has failed to establish "extraordinary circumstances" on which to vacate the judgment.

        The petitioner's motion for reconsideration, (Docket Entry No. 23), is DENIED.

        SIGNED at Houston, Texas, on July 272011.

        VANESSA D. GILMORE        UNITED STATES DISTRICT JUDGE