REPORT AND RECOMMENDATION TO DENY PETITIONER'S RULE 60(b) MOTION

CLINTON E. AVERITTE, Magistrate Judge.

Came for consideration the Rule 60(b) motion filed August 22, 2014 by petitioner BACK. This is the second Rule 60(b) motion petitioner has filed in this case. His first Rule 60(b) motion was dismissed as being an unauthorized successive habeas application or, alternatively, as an untimely Rule 60(b) motion. By that prior Rule 60(b) motion and by his current 60(b) motion, petitioner asserts respondent committed a fraud on the Court by filing a copy of an affidavit from the victim of the robbery of which petitioner was convicted. Petitioner argues the affidavit is fraudulent because the introductory paragraph erroneously reflects petitioner's name instead of one Terry Hearn, who actually signed the affidavit. Petitioner contends the Judgment denying petitioner habeas relief is void because of respondent's filing of this affidavit as an exhibit. Petitioner argues relief from the Judgment in this habeas proceeding is otherwise justified because of the misstatement in the victim's affidavit.

No fraud has been committed upon this Court by respondent. In fact, petitioner's motion to the Fifth Circuit to declare the affidavit fraudulent was denied. See Back v. Thaler, No. 11-10408. Under the law of the case doctrine, this ruling appears to foreclose petitioner's current argument in this Rule 60(b) motion that the affidavit was fraudulent. In any event, the December 13, 2006 affidavit is simply not fraudulent. It is signed by Terry Hearn, the complainant in petitioner's underlying state criminal prosecution. Although someone, probably the officer obtaining the affidavit, erroneously inserted petitioner's name instead of Mr. Hearn's in the blank space at the beginning of the affidavit, the affidavit is signed by Mr. Hearn acting as himself. A logical reading of the affidavit shows Mr. Hearn did not execute the affidavit representing to be petitioner or anyone other than himself. Further, respondent only produced this document in response to petitioner's motion to compel filed in this federal habeas case. The affidavit was not produced as part of any claim or affirmative defense of respondent. Respondent has not committed a fraud on this Court by filing a copy of the affidavit as an attachment to his response.

RECOMMENDATION

It is the RECOMMENDATION of the undersigned United States Magistrate Judge that petitioner's Rule 60(b) motion be DISMISSED for being an unauthorized successive habeas corpus application. The undersigned recommends dismissal rather than transfer to the United States Court of Appeals for the Fifth Circuit because of the frivolous nature of the motion. If petitioner elects to proceed and to seek authorization from the appellate court, he does so at his peril and does so after having been admonished as to the meritless and frivolous nature of the argument he presents.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.