United States District Court, M.D. Florida, Jacksonville Division
BOBBY L. MAGWOOD, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
MORALES HOWARD UNITED DISTRICT JUDGE
matter comes before the Court on Petitioner Bobby
Magwood's Motion to Set Aside Judgment (Motion; Doc. 53),
filed pursuant to Federal Rule of Civil Procedure 60(d)(1)
and (3) on January 3, 2020. In the Motion, Magwood requests
that the Court set aside the judgment entered on April 21,
2010, following the denial of his amended petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (Docs. 31;
32). Motion at 1. Magwood contends newly discovered evidence
exists that exonerates him. Id. at 1-2. Although not
entirely clear, it appears Magwood is arguing that on appeal
to the Eleventh Circuit Respondents identified the alleged
victim as a sexual battery victim, but he was found not
guilty on the sexual battery charges at his criminal trial in
state court. Id.
to Rule 60(d)(1), a court has the power to entertain an
independent action to relieve a party from a judgment, order,
or proceeding. The Eleventh Circuit has “identified the
following elements required for Rule 60(d)(1) relief:
(1) a judgment which ought not, in equity and good
conscience, to be enforced; (2) a good defense to the alleged
cause of action on which the judgment is founded; (3) fraud,
accident, or mistake which prevented the defendant in the
judgment from obtaining the benefit of his defense; (4) the
absence of fault or negligence on the part of defendant; and
(5) the absence of any remedy at law.
Aldana v. Del Monte Fresh Produce N.A., Inc., 741
F.3d 1349, 1359 (11th Cir. 2014) (quoting Travelers
Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th
Cir.1985)). Likewise, under Rule 60(d)(3), a court has the
authority to set aide a judgment for fraud on the court.
“[O]nly 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, will
constitute a fraud on the court.” Galatolo v.
United States, 394 Fed.Appx. 670, 672 (11th Cir. 2010)
(quoting Rozier v. Ford Motor Co., 573 F.2d 1332,
1338 (5th Cir. 1978)). “An action for fraud upon the
court should be available only to ‘prevent a grave
miscarriage of justice.'” Id. (quoting
United States v. Beggerly, 524 U.S. 38, 47 (1998)).
A party seeking relief under Rule 60(d)(3) must establish
such by clear and convincing evidence and conclusory
allegations are insufficient to prove the existence of the
same. Id.; Gupta v. U.S. Atty.
Gen., 556 Fed.Appx. 838, 840 (11th Cir. 2014). The party
must demonstrate that “the challenged outcome was
actually obtained through - or at least impacted by -the
alleged fraud.” Gupta, 556 Fed.Appx. at 840.
has not established relief under either Rule 60(d)(1) or (3).
He has provided only conclusory allegations with no
supporting facts demonstrating by clear and convincing
evidence that the judgment should not be enforced or that
fraud occurred. See Gupta, 556 Fed.Appx. at 840. At
best, Magwood has only alleged that Respondents
mischaracterized the status of the victim with the Eleventh
Circuit, not this Court. Even assuming Magwood's
allegations are true, it does not establish that the judgment
against Magwood in this case should not be enforced or that
fraud was committed. A party's pleadings are not vidence.
Moreover, this alleged error occurred in a pleading on appeal
not before this Court and would not have, in any manner,
impacted this Court's decision or Magwood's
underlying criminal proceedings. See id. As such,
the Motion is due to be denied.
it is ORDERED that
1. Magwood's Motion to Set Aside Judgment (Doc. 53) is
2. If Magwood appeals the Court's denial of his Motion,
the Court denies a certificate of
appealability. Because this Court has determined that a
certificate of appealability is not warranted, the
Clerk of Court shall terminate from the
pending motions report any motion to proceed on appeal as a
pauper that may be filed in this case. Such termination shall
serve as a denial of the motion.
 See Houston v. Lack, 487 U.S.
266, 276 (1988) (mailbox rule).
 This Court should issue a certificate
of appealability only if the Petitioner makes “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Petitioner “must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,
” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that “the issues presented were
‘adequate to deserve encouragement to proceed
further.'” Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Ba ...