Woodberry vs. State of Kansas

Filing 920060327

Opinion

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U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT United States Court of Appeals Tenth Circuit FILED March 27, 2006 Elisabeth A. Shumaker Clerk of Court T H O M A S WOODBERRY, Petitioner-Appellant, v. D A V I D McKUNE, Warden, Lansing C o r r e c t i o n a l Facility, and A T T O R N E Y GENERAL OF THE S T A T E OF KANSAS, Respondents-Appellees. ORDER * Before HARTZ , EBEL , and TYMKOVICH , Circuit Judges. ** N o . 05-3304 ( D . of Kan.) (D.C. No. 03-CV-3409-SAC) Petitioner-Appellant Thomas Woodberry, a state prisoner appearing pro se, i s a frequent filer in both the state and federal courts. His latest appeal arises f r o m the district court's transfer of his habeas corpus petition alleging, among This order is not binding precedent, except under the doctrines of law of t h e case, res judicata, and collateral estoppel. The court generally disfavors the c i t a t i o n of orders; nevertheless, an order may be cited under the terms and c o n d i t i o n s of 10th Cir. R. 36.3. * After examining the briefs and the appellate record, this three-judge p a n e l has determined unanimously that oral argument would not be of material a s s i s t a n c e in the determination of this appeal. See Fed. R. App. P. 34(a); 10th C i r . R. 34.1(G). The cause is therefore ordered submitted without oral argument. ** o t h e r claims, that his sentence was illegally aggregated. Because the court c o n s t r u e d his claims to assert a violation of 28 U.S.C. 2254 and found that the p e t i t i o n constituted a second or successive habeas petition, authorization from t h i s court was required before the district court could proceed. Pursuant to 28 U.S.C. 2244, this court denied such authorization. W o o d b e r r y subsequently filed a motion for relief from judgment under Fed. R . Civ. P. 60(b), alleging the government misrepresented facts before the district c o u r t resulting in the court's improper characterization of his claim as a 2254 motion as opposed to a 2241 motion. 1 Woodberry alleges this improper c h a r a c t e r i z a t i o n ultimately resulted in the erroneous dismissal of his claim. The d i s t r i c t court dismissed this motion, again construing it as a second or successive h a b e a s petition. He now appeals. A s the Supreme Court recently held, a Rule 60(b) motion should not be c o n s t r u e d as a second or successive habeas petition where it alleges a "defect in the integrity of the federal habeas proceedings" under 2254. Crosby , 125 S. Ct. 2641, 2648 (2005); Gonzalez v. see id. at 2648 n.4 (noting that a Rule A 2254 motion, involving a challenge to the validity of the sentence, r e q u i r e s pre-certification from an appropriate court of appeals before a district c o u r t may consider the merits of the claim. See 28 U.S.C. 2244(b)(3)(A); Davis v . Roberts, 425 F.3d 830, 833 (10th Cir. 2005). On the other hand, a 2241 motion, involving a challenge to the execution of the sentence, does not r e q u i r e such certification. See 28 U.S.C. 2244(a); Davis, 425 F.3d at 833. 1 -2- 6 0 ( b ) motion "merely assert[ing] that a previous ruling which precluded a merits d e t e r m i n a t i o n was in error" is not the equivalent of a second or successive habeas p e t i t i o n ) . "Fraud on the federal habeas court is one example of such a defect." Id. at 2648 n.5. Yet, even assuming a liberal construction of Woodberry's claim asserts s u c h a defect, his appeal still should be dismissed. When fraud is alleged, it must be pleaded with particularity. Fed. R. Civ. P. 9(b); 58 F.3d 1447, 1471 (10th Cir. 1995), see also Hatch v. Oklahoma , overruled on other grounds by Daniels v. United States , 254 F.3d 1180, 1188 n.1 (10th Cir. 2001) (noting that to be entitled t o an evidentiary hearing on claims raised in a habeas petition, the petitioner's a l l e g a t i o n s must be "specific and particularized, not general or conclusory"). Woodberry's conclusory allegation that the government "used unsubstantiated f a c t s to allow the Kansas district court to apply an erroneous procedural bar," Aplt.'s Br. at 2, does not satisfy this standard. Accordingly, we DISMISS Woodberry's appeal and DENY his motion to proceed in forma pauperis . Entered for the Court C l e r k of the Court -3- -4-

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