Opinion
Case No. 8:11-CV-766-T-30TBM.
June 16, 2011
ORDER
Before the Court is Petitioner's "Motion to Relate Back" (Dkt. 3) which the Court construes as a motion pursuant to Federal Rules of Civil Procedure, Rule 60(b) for relief from the Court's April 13, 2011 order dismissing Petitioner's petition for writ of habeas corpus at time-barred (see Dkt. 2).
Rule 60(b) provides the following grounds for relief:
(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.
To demonstrate entitlement to relief, Petitioner must "demonstrate a justification so compelling that the court [is] required to vacate its order." Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993).
Petitioner's motion has no merit. His petition for writ of habeas corpus is clearly time-barred. His motion does not demonstrate compelling circumstances justifying relief from the Court's order dismissing his petition for writ of habeas corpus. Thus, his motion must be denied.
ACCORDINGLY, the Court ORDERS that Petitioner's construed Rule 60(b) motion (Dkt. 3) is DENIED. To the extent that a certificate of appealability is required before Petitioner may appeal, the Court will deny the certificate because Petitioner has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).
DONE and ORDERED in Tampa, Florida.