United States of America v. Mercer

1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONOVAN GENE MERCER,
Defendant.
)
)
)
)
) 	Case No. CR-14-280-PRW
)
)
)
)
ORDER
Before the Court is Donovan Gene Mercer’s “Third Motion Pursuant to Federal
Rule of Civil Procedure 60(b)(6)” (Dkt. 230). Mercer “seek[s] out a merit determination of
his original 28 U.S.C. § 2255 complaints.” On October 2, 2025, Mercer filed a “Motion for
Summary Judgment” (Dkt. 232), in which he “moves for a summary judgment on his
uncontested Third Motion Pursuant to Federal Rule [of] Civil Procedure 60(b)(6)[.]” Upon
review, the Court DENIES both Motions (Dkts. 230, 232).
I. 	Rule 60(b)(6)
Mercer has now spent around a decade attempting to vacate, reconsider, or appeal
his conviction for possessing child pornography.1 All these attempts have been rejected.
Mercer now files his third Rule 60(b)(6) motion, once again seeking relief from the ruling
on his original 28 U.S.C. § 2255 petition and asking the Court to vacate his conviction. For
the first Rule 60(b)(6) motion, this Court found that his challenge was not a “true” Rule
1 A more detailed procedural history of this case was set out in this Court’s previous Order
(Dkt. 215).
Case 5:14-cr-00280-PRW Document 234 Filed 04/24/26 Page 1 of 4

2
60(b)(6) 	motion,2 construed 	it 	as 	a 	second 	habeas 	petition, 	and 	transferred 	it 	for
consideration to the Tenth Circuit (Dkt. 208). The Tenth Circuit subsequently denied the
motion and ruled that this denial “shall not be appealable and shall not be the subject of a
petition for rehearing or for a writ of certiorari.”3 Undeterred, Mercer then filed a second
Rule 60(b)(6), asking the Court to reopen his case at the original § 2255 stage and to appoint
counsel to assist him. With this second motion, Mercer finally identified two potential
procedural errors with his prior habeas proceeding: (1) the judge erred by denying him the
assistance of counsel and (2) there is no procedural bar on waived claims when failure to
present them on direct appeal is caused by the ineffective assistance of appellate counsel.
The Court considered these arguments and denied the second Rule 60(b)(6) motion (Dkt.
215).
Now, Mercer argues that this Court must reopen the § 2255 inquiry because the
judge presiding over the proceedings, Judge Miles-LaGrange, erred “by not examining
prejudice before she dismissed them to a procedural bar.”4 But Mercer is incorrect. Judge
Miles-LaGrange did in fact analyze actual prejudice before applying the procedural bars to
2 A “true” or proper Rule 60(b) motion either “(1) challenges a procedural ruling of the
habeas court which precluded a merits determination of the habeas application; or (2)
challenges a defect in the integrity of the federal habeas proceeding, provided that such a
challenge does not itself lead inextricably to a merits-based attack on the disposition of a
prior habeas motion.” West v. Champion, 363 F. App’x 660, 662 (10th Cir. 2010) (quoting
Spitznas v. Boone, 464 F.3d 1213, 1215–16 (10th Cir. 2006); see also Gonzalez v. Crosby,
545 U.S. 524, 532 n.4 (2005). The Court cites unpublished decisions of the Tenth Circuit
for their persuasive value, consistent with Tenth Cir. R. 32.1 and Fed. R. App. P. 32.1.
3 Tenth Circuit Order (Dkt. 212), at 6.
4 Third Mot. (Dkt. 230), at 6.
Case 5:14-cr-00280-PRW Document 234 Filed 04/24/26 Page 2 of 4

3
Mercer’s first, third, and fourth grounds for relief.5 Accordingly, there was no procedural
error in the previous denial of Mercer’s motion to vacate under § 2255.
The Court would also deny Mercer’s third Rule 60(b)(6) motion because it is
untimely. Rule 60(b)(6) motions “must be brought within a reasonable time.”6 Judge Miles-
LaGrange issued her order denying the motion to vacate on July 16, 2018. Mercer did not
file this third Rule 60(b)(6) motion until more than six years later, after already pursuing
two unsuccessful Rule 60(b)(6) motions in the interim. Under these circumstances, the
Court finds that the six-year delay between the underlying order and Mercer’s latest
challenge is unreasonable.7
II. 	Rule 56
Federal Rule of Civil Procedure 56 does not apply to this proceeding.8 The Court
therefore will not assess Mercer’s third Rule 60(b)(6) motion under the summary judgment
standard. The Court’s analysis into Mercer’s third Rule 60(b)(6) motion properly handles
the arguments raised in his Motion for Summary Judgment (Dkt. 232).
5 Order Denying § 2255 Relief (Dkt. 166), at (“Having carefully reviewed the parties’
submissions, the Court finds that Mercer has neither shown cause for his procedural default
and actual prejudice resulting from the alleged error nor shown that a fundamental
miscarriage of justice will result if these grounds for relief are not addressed.”).
6 Spitznas v. Boone, 464 F.3d 1213, 1225 (10th Cir. 2006).
7 Barber v. Jones, No. CIV-06-1260-W, 2011 WL 1327406, *2 (W.D. Okla. Mar. 9, 2011)
(finding that the defendant waited too long to invoke Rule 60(b)(6) after waiting over three
years to file).
8 Fed. R. Civ. P. 56(a).
Case 5:14-cr-00280-PRW Document 234 Filed 04/24/26 Page 3 of 4

4
III. 	Inappropriate Filings
Not only has Mercer spent years flooding the Court with Rule 60(b)(6) motions and
other motions, but he has also recently filed a letter stating “[t]his Court has done
wickedness before the eyes of God” and asking “that it should repent before He should
decide to take His pound of flesh.”9 This veiled threat is inappropriate and Mercer shall
refrain from similar comments in any future filings. Should Mercer continue to do so, the
Court will require him to seek leave of Court for any future filings.10
Conclusion
Accordingly, the Court DENIES Mercer’s “Third Motion Pursuant to Federal Rule
of Civil Procedure 60(b)(6)” (Dkt. 230) and “Motion for Summary Judgment” (Dkt. 232).
The Court also STRIKES Mercer’s Letter (Dkt. 231).
IT IS SO ORDERED this 24th day of April 2026.
9 Letter (Dkt. 231), at 4.
10 Sieverding v. Colo. Bar Ass’n, 469 F.3d 1340, 1345 (10th Cir. 2006).
Case 5:14-cr-00280-PRW Document 234 Filed 04/24/26 Page 4 of 4