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 1993-06

Gary Lavergis Rodger v. O.I. White, Warden, F.C.I. Memphis Benjamin F. Baer, Chairman, U.S. Parole Commission ( 1993 )


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  • 996 F.2d 1216

    NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
    Gary Lavergis RODGER, Petitioner-Appellant,
    v.
    O.I. WHITE, Warden, F.C.I. Memphis; Benjamin F. Baer,
    Chairman, U.S. Parole Commission, Respondents-Appellees.

    No. 92-6247.

    United States Court of Appeals, Sixth Circuit.

    June 15, 1993.

    Before KEITH and RYAN, Circuit Judges, and WELLFORD, Senior Circuit Judge.

    ORDER

    1

    Gary Rodger, a pro se federal prisoner, appeals a district court order denying his Rule 60(b) motion for relief from judgment and several other miscellaneous motions filed in support thereof. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

    2

    By way of background, in May 1986, Rodger was convicted of bank robbery and conspiracy to commit bank robbery. Rodger was also convicted for use of a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c). Rodger was sentenced to a total of ten years for the first two convictions and five years for using a firearm, to run consecutive to the first two sentences.

    3

    In November 1988, Rodger filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging the execution of his sentence. On May 20, 1989, the district court dismissed the petition, and this court affirmed the district court's judgment. Thereafter, Rodger filed various motions in the district court, including a motion for relief under Fed.R.Civ.P. 60(b) (filed 17 months after the judgment), motions for judgment on the pleadings (filed 20 months and 25 months after the judgment), and a motion for summary judgment and request for immediate entry of judgment on the Rule 60(b) motion (filed 26 months after the judgment). On April 20, 1992, the district court filed an order denying all of Rodger's pending motions as without merit. Rodger has filed this timely appeal from that order.

    4

    Upon review, we affirm the district court's order because the district court did not abuse its discretion when it denied Rodger's Rule 60(b) motion for relief from judgment. See Williams v. Browman, 981 F.2d 901, 903 (6th Cir.1992) (per curiam); In re Salem Mortgage Co., 791 F.2d 456, 459 (6th Cir.1986). Moreover, a Rule 60(b) motion does not serve as a substitute for an appeal, or bring up for review for a second time the merits of the district court's decision dismissing Rodger's habeas petition. See Browder v. Director, Dep't of Corrections, 434 U.S. 257, 263 (1978); Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir.1989).

    5

    Accordingly, the district court's order is hereby affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.