Levi Wooderts, Jr. v. Warden FCI Seagoville ( 2013 )

Case: 12-10432 Document: 00512173439 Page: 1 Date Filed: 03/13/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2013
No. 12-10432
Summary Calendar Lyle W. Cayce
Clerk
LEVI WOODERTS, JR.,
Petitioner-Appellant
v.
WARDEN, FEDERAL CORRECTIONAL INSTITUTION SEAGOVILLE,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-188
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
In 2005, Levi Wooderts, Jr., federal prisoner # 29639-077, filed a 28 U.S.C.
§ 2241 petition in which he sought credit on his federal sentence for time served
while in state custody and for time spent in federal custody pursuant to a writ
of habeas corpus ad prosequendum. After that petition was denied, Wooderts
filed three additional § 2241 petitions making the same general argument. In
ruling on the appeal of the denial of Wooderts’s latest such petition, we ordered
the following:
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-10432
Wooderts has previously been warned that frivolous,
repetitive, or otherwise abusive filings would invite
sanctions. He has failed to heed that warning.
Accordingly, he is ORDERED to pay a sanction of $100
to the Clerk of this Court. He is BARRED from filing
any pleading in this court or any court subject to this
court’s jurisdiction seeking credit for time served in
state custody until the sanction has been paid in full,
unless he first obtains leave of the court in which he
seeks to file such a pleading. Wooderts is further
CAUTIONED that any future frivolous, repetitive, or
otherwise abusive filings in the district court or in this
court will subject him to additional and progressively
more severe sanctions.
Wooderts then filed a motion in the district court for relief from judgment
of the denial of his 2005 § 2241 application, citing Rule 60(d)(3) of the Federal
Rules of Civil Procedure and alleging a fraud on the court. The district court
denied Wooderts leave to proceed as a sanctioned litigant, as Wooderts has not
paid the $100 sanction. This appeal follows.
Wooderts argues that the district court abused its discretion in disallowing
him to file his Rule 60(d)(3) motion. Wooderts contends that two Assistant
United States Attorneys presented to the district court an affidavit of Bureau of
Prisons employee Karen Summers that contained false and perjured statements.
We review a decision to deny a sanctioned litigant leave to file a pleading for
abuse of discretion. Gelabert v. Lynaugh, 894 F.2d 746, 747-48 (5th Cir. 1990).
A party who brings a motion grounded in Rule 60(d)(3) for fraud on the
court will receive relief only if he establishes by clear and convincing evidence
“the most egregious misconduct, such as bribery of a judge or members of a jury,
or the fabrication of evidence by a party in which an attorney is implicated.”
Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir.1978); Kinnear-Weed
Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 636 (5th Cir. 1971). To
establish fraud on the court, Wooderts would have to establish by clear and
convincing evidence not only that Summers committed perjury, but also that the
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No. 12-10432
prosecuting attorneys (a) were aware that Summers’s affidavit was false, and
(b) intended to use the false testimony in an attempt to defraud the court. See
Fierro v. Johnson,197 F.3d 147, 154 (5th Cir. 1999). Wooderts has not
demonstrated or alleged that he can demonstrate by clear and convincing
evidence that the presentation of an affidavit which may contain discrepancies
amounts to a fraud on the court. The district court did not abuse its discretion
in refusing Wooderts leave to file as a sanctioned litigant.
AFFIRMED.
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