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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

QUINTIN PHILLIPPE JONES, §

Petitioner, §

VS. § CIVIL ACTION NO. 4:05-CV-638-Y

 § (death-penalty case)

NATHANIEL QUARTERMAN, Director,§

Texas Department of Criminal §

Justice, Correctional §

Institutions Division, § 

Respondent. §

ORDER GRANTING PETITIONER’S MOTION FOR RELIEF FROM JUDGMENT

Pending before this Court is a motion for relief from judgment

pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, filed

on May 29, 2008 [doc. #35]. This motion, filed by the petitioner

in this death-penalty habeas case (“Jones”), requests that this Court

lift its judgment, which dismissed his writ of habeas corpus as timebarred under 28 U.S.C. § 2244(d). Respondent (“the State”) opposes

this motion.

I.

History of Case

Jones filed his initial federal petition for writ of habeas

corpus on September 14, 2006. The State filed both an answer and

a motion to dismiss on November 17, 2006, and furnished the statecourt records. Jones filed no reply brief. This Court issued an

opinion on September 21, 2007, dismissing Jones’s petition because

it was not filed within the one-year time limit under the
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Antiterrorism and Effective Death Penalty Act of 1996 (“the AEDPA”).

This Court’s judgment was handed down that same day. Jones did not

appeal this ruling. On February 27, 2008, this Court received a

letter from Jones, dated February 19, 2008, stating that it was not

his intention to abandon his appeal and that he had only recently

discovered that no appeal had been filed in his case.

On March 21, 2008, this Court appointed new counsel for Jones.

On May 29, 2008, counsel filed a motion for relief from this Court’s

judgment under Rule 60(b) of the Federal Rules of Civil Procedure.

FED. R. CIV. P. 60(b). The State filed a response opposing this motion

on July 2, 2008, and Jones filed a reply brief on July 22, 2008.

II

Analysis

Under the AEDPA, a person in custody under a state judgment has

one year to file his federal habeas petition. See 28 U.S.C. §

2244(d)(1). In Jones’s case, this one-year statute of limitations

began to run when his state judgment became final. See 28 U.S.C. §

2244(d)(1)(A). However, under § 2244(d)(2), the running of the

statute is tolled during the time that a properly filed application

for state post-conviction or other collateral review is pending.

Taking into consideration the time this case was tolled because of

a pending state post-conviction review, Jones’s federal habeas

petition was due on April 18, 2006. It was not filed, however, until
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September 14, 2006. In his motion, Jones does not dispute that his

federal petition was filed late. Instead, Jones requests that this

Court vacate its judgment because of the “extraordinary circumstances

and equities” of this case. Specifically, Jones asserts that, because

his federal habeas counsel failed to file a timely federal petition,

failed to file a reply brief to the State’s motion to dismiss, and

failed to file an appeal of this Court’s judgment, the circumstances

and equities of this case require that this Court vacate its judgment

so that Jones may file a reply brief urging that the AEDPA’s one-year

limitation be equitably tolled. See Davis v. Johnson, 158 F.3d 806,

810-11 (5th Cir. 1998) (holding that the AEDPA’s one-year limitation

is not a jurisdictional bar and can, in exceptional circumstances,

be equitably tolled).

As support for his contention that his motion should be granted,

Jones cites to factors listed by the Fifth Circuit in Seven Elves,

Inc. v. Eskenazi, 635 F.2d 396 (5th Cir. 1981), as those that should

be considered by a district court when evaluating a motion for relief

from judgment. Those factors are: 1)that final judgments should not

lightly be disturbed; 2) that a Rule 60(b) motion should not be used

as a substitute for appeal; 3) that the rule should be liberally

construed in order to achieve substantial justice; 4) whether, if

the case was not decided on its merits due to a default or dismissal,

the interest in deciding the case on its merits outweighs the interest

in the finality of the judgment and there is merit in the claim or
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defense; 5) whether, if the judgment was rendered on the merits, the

movant had a fair opportunity to present his claims; 6) whether there

are intervening equities that would make it inequitable to grant

relief; and 7) any other factors relevant to the justice of the

judgment under attack. Id. at 402. Jones argues that, because a

motion for relief from judgment should be construed liberally in order

to achieve substantial justice and because his petition was dismissed

rather than decided on its merits and there is merit to his claim

that equitable tolling is warranted, his motion should be granted

by this Court.

The State argues that this Court should not grant Jones’s motion

and offers three reasons why the motion should be denied. First,

the State contends that the motion should be denied because it was

not filed in a timely fashion. Second, the State argues that the

circumstances of this case do not fit into any of the reasons

enumerated in Rule 60(b) as circumstances under which a judgment may

be vacated. And third, the State contends that Jones’s motion should

be denied because, even if this Court vacated its judgment, Jones

would lose on the merits because he could not show that he is entitled

to equitable tolling of one-year deadline under the AEDPA.

Under Rule 60(c), a motion for relief from judgment under Rule

60(b) should be filed within a reasonable time and, under certain

circumstances, no more than a year after the entry of the judgment.

FED. R. CIV. P. 60(c)(1). In the instant case, counsel filed the
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 Neither party contends that any of the other reasons listed under

Rule 60(b) as reasons that such a motion may be granted are applicable

here.

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motion approximately sixty days after being appointed as substitute

counsel in the case. As the State acknowledges, the Fifth Circuit

in Osborne v. Homeside Lending Inc., 379 F.3d 277, 283 (5th Cir.

2004), stated that what constitutes a reasonable time depends on the

facts of each case, including the reason for the delay, the interest

in finality, and the prejudice to other parties. This Court concludes

that sixty days after appointment of new counsel is a reasonable time

in which to file a 60(b) motion in a case where the death penalty

is involved and where no prejudice to the opposing party has been

shown.

The State also argues that Jones’s motion should be denied

because previous habeas counsel’s failure to file a response to the

State’s motion to dismiss the petition was due to neither “mistake,

inadvertence, surprise, or excusable neglect,” as is required under

Rule 60(b)(1), nor was it due to “any other reason that justifies

relief,” as required under Rule 60(b)(6). See FED. R. CIV. P. 60(b)(1)

& (6).1 And, the State contends that Jones’s motion should be denied

because his underlying claim that he would be entitled to equitable

tolling is without merit. This Court will address these two

contentions together.

Citing an unpublished Fifth Circuit case, the State contends

that the instant case is best analyzed under Rule 60(b)(1). In
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Broussard v. Johnson, 2001 WL 502799 (5th Cir. 2001), the Fifth

Circuit held that, in a capital habeas case, where Broussard’s

attorneys failed to respond to the State’s motion for summary

judgment, the district court did not abuse its discretion in denying

a Rule 60(b) motion because the neglect shown by Broussard’s attorneys

was not excusable under 60(b)(1), where one attorney left her law

practice and failed to notify the second attorney so that the second

attorney could file the necessary pleading. The Fifth Circuit noted

that it analyzed the case under 60(b)(1) rather than 60(b)(6) because

the party filing the motion was partially to blame for the delay and

because the petitioner’s attorneys failed to employ greater safeguards

to ensure that a response to the motion for summary judgment was

taken. In Broussard, the Fifth Circuit acknowledged that Rule 60(b)

motions should be resolved liberally so that close cases are resolved

on their merits and acknowledged that the Fifth Circuit had gone to

great lengths in the past to avoid a miscarriage of justice. And

the Court cited to previous cases in which the Court had found

excusable neglect where attorneys have missed deadlines. But the

Fifth Circuit in Broussard emphasized that the district court did

not abuse its discretion in denying the motion because Broussard had

failed to show both that he had a sufficiently meritorious defense
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 The Fifth Circuit in particular noted that the district court

decided the issues in Broussard on their merits, based on the habeas

petition and the State’s response.

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and that he did not have a fair opportunity to present that defense.

Id. at 2-3.2

Jones, however, contends that his case is more appropriately

considered under Rule 60(b)(6), and he cites Seven Elves as support

for this assertion. In that case, judgment was rendered for the

plaintiff after neither two of the three defendants nor their attorney

appeared at trial because the defendants never received notice of

the trial date from either the court or their attorney--and the two

defendants’ attorney, who was never removed as the attorney of record,

believed that he had been fired by the third co-defendant. The two

defendants filed a Rule 60(b) motion, which was denied by the district

court. The Fifth Circuit held that the district court had abused

its discretion in denying the motion for relief from the judgment

under Rule 60(b)(6) because: 1) the full merits of the cause were

not examined at the district court level; 2) the moving party had

shown both a meritorious defense and the lack of a fair opportunity

to present it; and 3) the defendants were never informed by their

attorney that he would no longer represent them. The Court in Seven

Elves also noted that no great delay would occur if relief was granted

and that no intervening rights would be prejudiced by granting relief.

Accordingly, the Court held that when these factors were balanced

against the interest in the finality of the judgment, the equities
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of the case required that the district court’s denial of the Rule

60(b) motion be reversed. Id. at 403.

In viewing the cases cited by Jones and by the State, it appears

that Jones’s circumstances fall somewhere between the two. On the

one hand, unlike the attorney in Seven Elves, Jones’s attorney did

represent him through much of the federal habeas process. However,

because Jones’s attorney filed the habeas petition late and failed

to file a response to the State’s motion to dismiss, Jones’s federal

petition was dismissed by this Court and, similarly to Seven Elves

and unlike the situation in Broussard, the merits of his case were

never addressed. Also, Jones’s original federal habeas attorney never

filed an appeal on his behalf and never informed Jones that he did

not do so, even after sending Jones a letter in June of 2006 in which

he indicated that, should this Court deny Jones’s federal petition,

he would appeal to the Fifth Circuit. (Motion Exhibit P). But, like

the attorney in Broussard, Jones’s original federal habeas attorney

was responsible for the failure to file a response to the State’s

motion to dismiss the habeas petition. 

Also, in both of the cases cited by the parties, the Fifth

Circuit took into consideration whether the moving party was likely

to prevail on the merits. The State contends that Jones’s motion

for relief from this Court’s judgment should be denied because, even

were Jones permitted to file a response to the State’s motion to

dismiss his petition, he would not be entitled to equitable tolling
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 Neither party addresses the merits of the grounds raised by Jones

in his original habeas petition. Accordingly, this Court will not take

those into consideration in deciding the merits of Jones’s motion.

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of the statute of limitations because it was filed late due to a

mistake by Jones’s former attorney. See Ruiz v Quarterman, 504 F.3d

523, 532 (5th Cir. 2007) (holding that a Rule 60(b) motion should

be granted because, in part, the petitioner’s underlying claims were

potentially meritorious). Jones contends that, on the contrary, the

circumstances of this case are similar to other cases where federal

courts have determined that equitable tolling is warranted (Motion

at 21-22). In the instant case, because no response was filed by

Jones to the State’s motion to dismiss, no reason has been given to

this Court for the delay in filing the federal petition, and there

is no evidence of the reason on record before this Court.

Accordingly, any conclusion this Court were to reach regarding the

merits of an equitable tolling argument would be based on inference,

rather than the record of the case.3

In conclusion, comparing the circumstances in the instant case

with the circumstances in Broussard and Seven Elves, and taking into

consideration that Broussard is an unpublished case and therefore

not binding precedent, this Court finds that it is appropriate to

consider this case under Rule 60(b)(6), under which a motion for

relief from judgment may be granted for “any other reason that

justifies relief.” Furthermore, the Court concludes that, while final

judgments should not lightly be disturbed, because this is a death
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penalty case, because the Fifth Circuit has indicated that a Rule

60(b) motion should be construed liberally in order to achieve

substantial justice, and because the merits of Jones’s habeas case

have not been considered by a federal court and Jones would be

prevented from presenting his potentially meritorious arguments to

any court should this Court deny his motion, this Court concludes

that the circumstances of this case are such that granting Jones’s

motion is warranted. Accordingly, this Court’s judgment dismissing

Jones’s habeas petition [doc. #29] is VACATED. Jones is permitted

to file a brief in response to the State’s motion to dismiss his

habeas petition and answer to his petition [doc. #26, 27]. Any such

response shall be filed in this Court no later than October 24, 2008.

SIGNED September 10, 2008.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

TRM/ebd:be