United States District Court, M.D. Alabama
OPINION AND ORDER
H. THOMPSON UNITED STATES DISTRICT JUDGE.
Samuel Allan McCormick, a state inmate, is before the court
on his pro se motion, filed under Federal Rule of
Civil Procedure 60(b)(4), for relief from this court's
November 2016 final judgment denying his 28 U.S.C. §
2254 habeas petition without an evidentiary hearing. He
argues that the United States District Court for the Northern
District of Alabama, where he originally filed his habeas
petition, determined that he was entitled to an evidentiary
hearing on his petition when it transferred the petition to
this court, in the Middle District of Alabama, for
disposition under 28 U.S.C. § 2241(d). For the reasons
that follow, this court will deny McCormick's Rule
filed his habeas petition in the United States District Court
for the Northern District of Alabama on May 20, 2016. In his
petition, he challenged his June 2012 state-court convictions
and sentences for sexual abuse of a child under the age of 12
years and enticement of a child for immoral purposes. After
the respondents filed an answer asserting among other
defenses the one-year limitation period in the Antiterrorism
and Effective Death Penalty Act (AEDPA), 28 U.S.C. §
2244(d), the Northern District court found the case ripe for
summary disposition and ordered him to show why his habeas
petition should not be summarily dismissed for the reasons
argued by the respondents. McCormick then filed pleadings
attempting to avoid dismissal of his petition.
September 13, 2016, the Northern District court entered an
order transferring McCormick's habeas petition to the
Middle District of Alabama, finding that, although he was
incarcerated within the Northern District, his convictions
arose from a county within the Middle District. The transfer
"In this habeas action pursuant to 28 U.S.C.
§ 2254, the petitioner challenges his convictions [for]
sexual abuse of a child under the age of 12 years and
enticing a child in the Circuit Court of Covington County,
Alabama. Although this court has jurisdiction over the
petition due to petitioner's incarceration at the
Limestone Correctional Facility, 28 U.S.C. § 2241(d)
provides that where two federal districts within a state have
jurisdiction by virtue of, respectively, the place of the
petitioner's confinement and the place of his conviction,
the court where the petition was filed may ‘in the
exercise of its discretion and in furtherance of justice ...
transfer the application to the other district court for
hearing and determination.' Covington County is located
in the Northern Division of the Middle District of Alabama.
28 U.S.C. § 81(b)(1). Because the records and witnesses
relating to the conviction are likely located in that
district, it is hereby ORDERED that this action be and hereby
is TRANSFERRED to the United States District Court for the
Middle District of Alabama.”
Transfer Order (doc. no. 24) at 1-2.
case was docketed in this court, and, on November 17, 2016,
after reviewing the pleadings, the United States Magistrate
Judge entered a recommendation that his habeas petition be
denied without an evidentiary hearing and dismissed as
untimely filed outside of 28 U.S.C. § 2244(d)'s
one-year limitation period. On November 30, 2016, the
recommendation was adopted by this court, and a final
judgment was entered for the respondents.
filed his Fed.R.Civ.P. 60(b)(4) motion on March 26, 2018,
arguing that this court's November 2016 judgment denying
his habeas petition without an evidentiary hearing is void
because, he says, the Northern District court, in
transferring the petition to this Middle District court,
decided he was entitled to an evidentiary hearing on his
claims. According to McCormick, the Northern District court
“conclusively determined that McCormick had overcome
ALL statutory and procedural bars for summary
disposition and determined McCormick was entitled to an
evidentiary hearing and TRANSFERRED McCormick's petition
in furtherance of justice for hearing and determination ...
to be conducted by the United States Middle District Court of
Alabama.” Rule 60(b) Motion (doc. no. 90) at 3.
McCormick maintains this court's judgment dismissing his
habeas petition as time-barred without holding an evidentiary
hearing “intentionally contradict[ed] [Northern
District court]'s decision” and is therefore void.
Id. at 4.
60(b) of the Federal Rules of Civil Procedure allows a party
to move for relief from a final judgment in a civil case on
the following grounds:
“(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.”
Fed. R. Civ. P. 60(b). McCormick seeks relief under subpart
(4), arguing that this court's November 2016 judgment
denying his habeas petition is void.
court “act[s] without authority, its judgments and
orders are regarded as nullities. They are not voidable, but
simply void; and form no bar to a remedy sought in opposition
to them, even prior to a reversal.” Elliott v.
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