CIVIL ACTION NO. 1:-02-CV-075-C
August 19, 2003
Petitioner, Roger A. Smith, filed a Motion for Relief of Judgment under Fed R. Civ. P. 60(b) on June 12, 2003. That motion was construed as a successive habeas petition and dismissed on July 2, 2003. See Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir. 1999) ("Rule 60(b) motions should be construed as successive habeas petitions.")
Petitioner then filed a second "Motion to Vacate Judgement Under Rule 60(b)" on July 24, 2003. On August 4, 2003, Petitioner filed a "Request to Disregard 2d 60(B) Motion" stating that the second motion was "mailed to the Court by mistake."
Petitioner has also filed a "Motion to Request Extention (sic) of Time to Request Permission to File a Successive (sic) Petition." That motion should be filed directly with the United States Court of Appeals for the Fifth Circuit.
The Court finds that
(1) the motion to disregard should be granted;
(2) the motion to vacate filed on July 24, 2003, should be denied as moot; and
(3) to the extent the motion to request extension of time to request permission to file a successive petition is pending before this Court, it should be denied, subject to Petitioner's right to refile the motion directly with the Court of Appeals.