United States District Court, N.D. Mississippi, Oxford Division
M. BROWN, UNITED STATES DISTRICT JUDGE.
the Court in this habeas case is Deldrick Lamont
Carroll's “Motion for Relief from Judgement
Pursuant to Fed. R. Civ. P., 60(b)(6).” Doc. #32.
about February 15, 2017, Deldrick Lamont Carroll filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 challenging his 2014 state court conviction for
robbery with a deadly weapon and his designation at
sentencing as a habitual offender. Doc. #1 at 1, 15. In his
petition, Carroll asserted five enumerations of error under
Mississippi and constitutional law: (1) it was error to try
him in absentia; (2) it was error to allow the state to amend
the indictment to charge him as an habitual offender; (3) he
received ineffective assistance of counsel due to
counsel's failure to object to the admission of a
recorded phone conversation between him and the victim that
was taken in violation of the Fifth Amendment; (4) his claims
warrant an evidentiary hearing; and (5) he was deprived of
his constitutional rights due to a discovery violation
committed by the state. Id. at 2-14.
1, 2018, this Court entered a memorandum opinion and order
adopting United States Magistrate Judge David A. Sanders'
Report and Recommendation, which recommended that
Carroll's petition for a writ of habeas corpus be denied.
Doc. #27. A final judgment was issued the same day. Doc. #28.
about August 22, 2018, Carroll, invoking Federal Rule of
Civil Procedure 60(b)(6), filed a motion seeking relief from
this Court's final judgment. Doc. #32 at 1, 15. The
respondents filed a response in opposition to the motion on
August 31, 2018. Doc. #33. On or about October 3, 2018,
Carroll filed a “Motion to Dismiss Respondents'
Motion in Response to 60(b) Motion, ” which is in
substance a reply in support of his Rule 60(b)
motion. Doc. #34 at 1, 6.
Rule of Civil Procedure 60(b) provides that a “court
may relieve a party or its legal representative from a final
judgment, order, or proceeding” for any of six 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 (whether previously called intrinsic or
extrinsic), 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.” Where, as here, a habeas petitioner
relies on the catchall provision of 60(b)(6), he “is
required to show extraordinary circumstances justifying the
reopening of a final judgment.” Diaz v.
Stephens, 731 F.3d 370, 374 (5th Cir. 2013) (internal
quotation marks omitted).
motion for reconsideration, Carroll advances two arguments:
(1) the district court erred in failing to reach the merits
of his ineffective assistance of counsel claim, which the
Court found to have been procedurally defaulted; and (2) he
was entitled to an evidentiary hearing before dismissal of
regard to his ineffective assistance claim, Carroll argues
that his claim was not procedurally defaulted because he was
prevented from raising the claim on post-conviction review
(during which he represented himself pro se) by the
“historically known” Mississippi rule that
“a claim not objected to at trial, or argued at trial,
can not be brought for the first time on appeal.” Doc.
#32 at 2. In essence, Carroll argues that because his claim
was not presented at trial, he should be excused from having
to raise the claim in a post-conviction petition because
doing so would have been futile. This is simply not the case.
Indeed, in its order denying Carroll's direct appeal from
his conviction, the Mississippi Court of Appeals dismissed
“Carroll's claim of ineffective assistance of
counsel, [but] preserve[d] his right to pursue the issue in a