Russell Reger v. James Walker ( 2020 )

Case: 19-10662 Document: 00515469477 Page: 1 Date Filed: 06/29/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-10662 FILED
Summary Calendar June 29, 2020
Lyle W. Cayce
Clerk
RUSSELL JAY REGER,
Petitioner-Appellant
v.
JAMES K. WALKER; OUIDA STEVENS; HONORABLE ROGER JEFFREY
WALKER; HONORABLE CLYDE R. ASHWORTH; HONORABLE KELLY G.
MOORE; ANTHONY G. BROCATO; TARRANT COUNTY, TEXAS,
Respondents-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:07-MC-33
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Russell Jay Reger, Texas prisoner # 747783, appeals the denial of his
Federal Rule of Criminal Procedure 60(b) motion. He requested vacatur of the
district court’s 2007 order that denied his Federal Rule of Civil Procedure 27
petition to perpetuate testimony, which denial this court affirmed. See Reger
v. Walker, No. 08-10083 (5th Cir. Feb. 26, 2009) (unpublished). He has also
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-10662 Document: 00515469477 Page: 2 Date Filed: 06/29/2020
No. 19-10662
moved to strike the brief filed by appellees Walker, Stevens, Walker, Ashworth,
Moore, and Brocato or, in the alternative, to file an out-of-time reply
incorporating verbatim the arguments made in his reply to the brief of appellee
Tarrant County, Texas. Reger’s Rule 60(b) motion sought recognition by the
district court that his Texas murder conviction was void on account of the
visiting trial judge’s alleged failure to take the oath of office in contravention
of the Texas Constitution. Reger argues that because his state court judgment
of conviction was void, the district court lacked jurisdiction to entertain his
earlier Rule 27 petition.
We review de novo the denial of a Rule 60(b)(4) motion challenging a
judgment as void, Jackson v. Fie Corp., 302 F.3d 515, 521-22 (5th Cir. 2002),
and may affirm “on any grounds supported by the record.” Sojourner T v.
Edwards, 974 F.2d 27, 30 (5th Cir. 1992). The district court’s jurisdiction over
Reger’s Rule 27 petition was not predicated on the validity of his state court
judgment of conviction. Subject matter jurisdiction is not a prerequisite for
filing a Rule 27 petition; it is a prerequisite for only the contemplated action to
be filed. See Dresser Indus. v. United States, 596 F.2d 1231, 1238 (5th Cir.
1979). Reger has therefore shown no error on the part of the district court in
denying Rule 60(b) relief.
AFFIRMED; MOTION TO STRIKE APPELLEES’ BRIEF DENIED;
MOTION IN THE ALTERNATIVE TO FILE AN OUT-OF-TIME REPLY
GRANTED.
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