NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2012*
Decided December 18, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐1102 Appeal from the
United States District Court for the
DALMANIC A. SIMMONS, Northern District of Illinois,
Petitioner‐Appellant, Eastern Division.
v. No. 09 C 2997
JOSEPH YURKOVICH, James F. Holderman,
Respondent‐Appellee. Chief Judge.
O R D E R
Dalmanic Simmons, an Illinois prisoner, appeals the denial of his Rule 60(b) motion
seeking to reopen the dismissal of his 2009 petition for a writ of habeas corpus. The district
court denied the motion because it was untimely and raised grounds for habeas relief that
could have been asserted earlier. We affirm.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2)(C).
No. 12‐1102 Page 2
In 1991 Simmons pleaded guilty in Illinois state court to first‐degree murder and
armed robbery and was sentenced to 40 years in prison. In 1998 he filed a petition for
habeas corpus under 28 U.S.C. § 2254 challenging the legality of his convictions, but the
district court denied relief. In 2009 Simmons filed another § 2254 petition, this time
challenging the revocation of his good‐conduct credits. The district court construed the new
petition as a “second or successive” habeas petition under 28 U.S.C. § 2244 and dismissed it
for lack of jurisdiction because Simmons had not sought leave of this court to file it. See 28
U.S.C. § 2244(b)(3)(A). Simmons did not appeal this order. Instead, later that year he asked
this court for permission to file a new habeas petition and also sought a writ of mandamus
to compel the district court to reopen the 2009 petition. We denied both requests.
In 2011 Simmons filed a motion under Rule 60(b) of the Federal Rules of Civil
Procedure asking the district court for relief from the order dismissing his 2009 petition. He
maintained that the judgment was void because the court erroneously dismissed his
petition as an unauthorized second or successive petition under § 2244. See FED. R. CIV.
P. 60(b)(4) (authorizing the court to grant postjudgment relief from void judgments). The
district court denied the motion in two orders. In the first order, the judge said that the 2009
petition was properly dismissed for lack of jurisdiction under § 2244(b)(3)(A) as an
unauthorized successive habeas petition. In the second order, the judge explained that
Simmons’s claim of error should have been raised in a direct appeal from the 2009 order
rather than a postjudgment motion. Alternatively, the judge held that the Rule 60(b) motion
was untimely because it had not been filed within a reasonable time after the judgment
became final. See FED. R. CIV. P. 60(c)(1).
Simmons appealed, reiterating his argument that the district court incorrectly
construed his 2009 petition as a second or successive habeas petition under § 2244 and
therefore should not have dismissed it for lack of jurisdiction. He also contends that the
court erred in deeming his motion untimely because a motion for relief under Rule 60(b)(4)
may be filed at any time. See Philos Techs., Inc. v. Philos & D., Inc., 645 F.3d 851, 857 (7th Cir.
2011); O’Rourke Bros. Inc. v. Nesbitt Burns, Inc., 201 F.3d 948, 950 (7th Cir. 2000). We review
the district court’s denial of a Rule 60(b) motion for abuse of discretion. See Stoller v. Pure
Fishing Inc., 528 F.3d 478, 480 (7th Cir. 2008).
The court did not abuse its discretion in denying relief under Rule 60(b)(4), at least
insofar as the court’s rationale was that Simmons could have and should have raised his
claim of error in a direct appeal. “Rule 60(b)(4) does not provide a license for litigants to
sleep on their rights.” United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1380 (2010);
see also Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 743 (7th Cir. 2009); Stoller, 528 F.3d
at 480; Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000). Although Simmons styled
his motion as attacking a “void” judgment under Rule 60(b)(4), “[a] judgment is void only if
No. 12‐1102 Page 3
the court which rendered it lacked jurisdiction of the subject matter or of the parties, or if it
acted in a manner inconsistent with due process of law.” O’Rourke Bros., 201 F.3d at 951.
Simmons does not challenge the district court’s jurisdiction to enter a judgment dismissing
his § 2254 petition; he argues instead that the court should have considered the petition on
the merits rather than dismissing it on jurisdictional grounds. His current claim that the
court misconstrued the 2009 petition as successive under § 2244 should have been raised in
a direct appeal from the dismissal order; it is not the proper subject of a Rule 60(b)(4)
motion.
Simmons also argues that he is entitled to relief under Rule 60(b)(4) because he was
denied due process of law. But the district court gave Simmons an opportunity to be heard
on his petition; Simmons simply did not avail himself of the opportunity to appeal the
court’s order dismissing it. See United Student Aid Funds, 130 S. Ct. at 1377 (“Rule 60(b)(4)
applies only in the rare instance where a judgment is premised either on a certain type of
jurisdictional error or on a violation of due process that deprives a party of notice or the
opportunity to be heard.”). His claim that the district court erroneously dismissed the
petition is not cognizable as a due‐process violation. It is a simple claim of error that could
have been raised and corrected in a direct appeal; due process does not guarantee error‐free
outcomes. See Marozsan v. United States, 90 F.3d 1284, 1289 (7th Cir. 1996); Del’s Big Saver
Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344, 1350 (7th Cir. 1986).
We need not address Simmons’s alternative argument about the timeliness of the
motion. The district court did not abuse its discretion in denying relief under Rule 60(b)(4).
AFFIRMED.