McLeod v. Harrelson, et al(INMATE3)

Filing 75

OPINION. Signed by Honorable Judge Myron H. Thompson on 5/28/13. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JACKIE McLEOD, # 116274-A, )
)
Petitioner,
)
)
v.
) Civil Action No.
) 2:91cv02-MHT
E.L. HARRELSON, et al.,
)
(WO)
)
Respondents.
)
OPINION
Before the court are two pro se motions filed on
April 4 and May 1, 2013, by petitioner Jackie McLeod, an
Alabama inmate, in which he purports to seek relief under
Rule 60(b)(4) and (6) of the Federal Rules of Civil
Procedure.

Doc. Nos. 72 and 74.1

In both motions, he

contends that a 1994 judgment of this case dismissing a
28 U.S.C. § 2254 petition for habeas corpus relief he
filed in 1991 is void.
motions,

he

also

asserts

Id.

In the second of these

claims

attacking

his

state

1. Unless
otherwise
indicated,
references
to
documents numbers (“Doc. No.”) are to those assigned by
the Clerk of Court in the instant case, Civil Action No.
2:91cv02-MHT. Page references to pleadings are to those
assigned by CM/ECF.

convictions for four counts of cocaine distribution and
the resulting sentence of life imprisonment as a habitual
felony offender entered against him in 1989.

Doc. No. 74

at 3-7.

I.
In

January

1991,

BACKGROUND
McLeod

filed

a

§

2254

habeas

petition in this court challenging the convictions and
sentence imposed by the state trial court in 1989.
No. 2.

Doc.

He raised a total of 25 claims in the habeas

petition.

On December 1, 1992, the magistrate judge

entered a recommendation that McLeod’s habeas petition be
denied, reaching the merits of nine claims and dismissing
the remaining claims on procedural default grounds.
No. 50.

Doc.

The district court adopted the recommendation of

the magistrate judge and entered judgment against McLeod
on December 18, 1992.

Doc. No. 52.

McLeod appealed, and, on June 17, 1994, the Eleventh
Circuit Court of Appeals affirmed in part but reversed

2

this court’s holding that most of McLeod’s claims were
procedurally defaulted, and the appellate court remanded
the case to this court for further proceedings.2

McLeod

v. Harrelson, No. 93-6039, 26 F.3d 1121 (11th Cir. 1994)
(Table).

Following remand, the magistrate judge, on

October 5, 1994, entered a recommendation that McLeod’s
habeas petition should be dismissed without prejudice to
allow

him

to

return

unexhausted claims.

to

state

court

Doc. No. 67.

to

exhaust

his

This district court

adopted the recommendation of the magistrate judge and
entered a judgment dismissing the habeas petition without

2. This court had concluded the claims, which McLeod
initially raised in several state post-conviction
petitions, were procedurally defaulted because McLeod
failed to appeal from the denial of his first state postconviction petition and his subsequent state postconviction petitions had been dismissed as successive.
The Eleventh Circuit found that, because McLeod’s direct
appeal was pending when his first state post-conviction
was denied, the trial court lacked jurisdiction, under
former Rule 20, Ala.R.Crim.P. Temp., to rule on the first
state post-conviction petition. Consequently, there had
been no actual ruling on the merits of the first state
post-conviction petition, and the subsequent state postconviction petitions were not successive.
3

prejudice on November 17, 1994.

Doc. No. 71.

McLeod

did not appeal that judgment.
Although McLeod purports in his instant motions to
challenge “the District Court Magistrate Judge (John L.
Carroll) court order ruling on or about September 20,
1994,

dismissing

petitioner[’s]

2254

habeas

petition

without prejudice,” Doc. No. 72 at 1; Doc. No. 74 at 1,
no such order was entered by the magistrate judge or the
district court on that date.

It appears that the correct

date of the ruling of this court under attack by McLeod
is November 17, 1994, the date on which this court
adopted the recommendation of the magistrate judge and
entered an order dismissing McLeod’s habeas petition
without prejudice to allow him to return to state court
to exhaust his unexhausted claims.

II .DISCUSSION
As noted, McLeod purports to seek relief under Rule
60(b)(4) and (6) of the Federal Rules of Civil Procedure.

4

He asserts that this court’s 1994 judgment dismissing
without prejudice the § 2254 habeas petition he filed in
January

1991

is

void

because

the

court

“lacked

jurisdiction and authority” to enter such a judgment
after the Eleventh Circuit

remanded his petition to this

court for further proceedings in light of its holding
that

this

court

had

erred

in

finding

that

most

of

McLeod’s claims were procedurally defaulted.
“Federal Rule of Civil Procedure 60 provides a basis,
but only a limited basis, for a party to seek relief from
a final judgment in a habeas case.”

Williams v. Chatman,

510 F.3d 1290, 1293 (11th Cir. 2007).

Rule 60, like all

Federal Rules of Civil Procedure, applies only to civil
actions and proceedings in the United States District
Court.

Fed.R.Civ.P. 1.

A party may seek relief from judgment under subpart
(b)(4) of Rule 60 if the judgment was “void,” that is,
the

district

Fed.R.Civ.P.

court

lacked

60(b)(4).

jurisdiction

Subpart

5

(b)(6)

to
of

enter
Rule

it.
60

provides for relief from judgment for “any other reason
that justifies relief.”

Fed.R.Civ.P. 60(b)(6).

Motions

brought under subparts (b)(4) and (b)(6) “must be made
within a reasonable time ... after the entry of the
judgment

or

challenged.

order

or

the

date

of

the

proceeding”

Fed.R.Civ.P. 60(c)(1).

Here, McLeod attacks a judgment of this court that is
over 18 years old.
lengthy delay.

He has given no reason for his

Under the circumstances, the court finds

that his motions were not filed within a reasonable time
after

entry

of

the

judgment

he

challenges

and

are

therefore untimely. Consequently, his motions for relief
under Rule 60(b)(4) and (6) are due to be dismissed on
this ground.

See, e.g., Soloman v. United States, 300

Fed. App’x 857, 858–59 (11th Cir. 2008) (Rule 60(b) motion
on denial of § 2255 motion denied because petitioner
“failed to file his motion for relief within a reasonable
time, and he did not provide any explanation for the
[nine-year] delay” in filing motion); BUC Int’l Corp. v.

6

International Yacht Council, Inc., 517 F.3d 1271, 1275
(11th Cir. 2008) (in deciding what is a “reasonable time”
to file a Rule 60(b) motion, the court “must consider the
circumstances of each case to determine ‘whether the
parties have been prejudiced by the delay and whether a
good reason has been presented for failing to take action
sooner’”).
Moreover,

McLeod

has

not

presented

any

evidence

supporting his assertion that this court’s 1994 judgment
is void.
60(b)(4)

“Generally, a judgment is void under Rule
if

the

court

that

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.”

Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir.

2001) (citation and quotation marks omitted). McLeod has
not raised any reasonable arguments suggesting that this
court lacked jurisdiction in this case or that it acted
in a manner inconsistent with due process of law.

“A

judgment is not void ... simply because it is or may have

7

been erroneous.

Similarly, a motion under Rule 60(b)(4)

is not a substitute for a timely appeal.
60(b)(4)

applies

judgment

is

only

premised

in

the

either

rare
on

Instead, Rule

instance

where

certain

type

a

a
of

jurisdictional error or on a violation of due process
that deprives a party of notice or the opportunity to be
heard.”

United Student Aid Funds, Inc. v. Espinosa, 559

U.S. 260, __, 130 S.Ct. 1367, 1377 (2010) (citation and
quotation marks omitted).
McLeod also fails to point out any error in this
court’s judgment.
remanded

McLeod’s

As indicated, the Eleventh Circuit
habeas

further proceedings.

petition

to

this

court

for

In light of the Eleventh Circuit’s

opinion, this court concluded that his petition contained
claims that were unexhausted in the state courts, and
this court dismissed the petition without prejudice to
allow McLeod to pursue his state-court remedies.
does not show how this ruling was erroneous.3

3.

McLeod
For the

Any suggestion by McLeod that he was deprived of
(continued...)
8

reasons set forth, then, this court concludes that McLeod
fails

to

demonstrate

a

basis

for

relief

under

Rule

60(b)(4).4
In one of McLeod’s motions under consideration, Doc.
No. 74, he not only presents claims that challenge this
court’s 1994 judgment with regard to his January 1991
habeas petition, but he also attack his convictions for
four counts of cocaine distribution and the resulting
sentence of life imprisonment entered against him in
1989.

Doc. No. 74 at 3-7.

It is well settled, however,

3. (...continued)
an opportunity to have his claims heard would be
disingenuous. When he returned to state court, he filed
an amended state post-conviction petition raising 12
grounds for relief. Counsel was appointed to represent
him, and an evidentiary hearing was held.
The state
trial court then considered all the issues McLeod had
raised in his January 1991 habeas petition and those in
his
amended
state
post-conviction
petition.
Subsequently, McLeod filed several more § 2254 habeas
petitions in this court challenging the same convictions
and sentence.
4. McLeod makes no attempt to set forth “any other
reason that justifies relief,” as provided in Rule
60(b)(6). Thus, he also fails to demonstrate a basis for
relief under Rule 60(b)(6).
9

that Fed.R.Civ.P. 60 does not provide a vehicle for
relief from a judgment in a criminal case.

United States

v. Fair, 326 F.3d 1317 (11th Cir. 2003); United States v.
Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998).
The court’s records reflect that, in September 1995,
McLeod filed a § 2254 habeas petition challenging these
same state-court convictions. See
Civil

Action

Nos.

1:95cv1181-WHA,

(M.D. Ala. Oct. 24, 1996).

McLeod v. Sutton,
and

1:95cv1219-WHA

In that habeas action, this

court determined that his petition was due to be denied
because he had procedurally defaulted on each of his
claims for relief and had failed to show cause and
prejudice

or

a

fundamental

miscarriage

excusing his procedural default.

of

justice

McLeod v. Sutton,

Civil Action Nos. 1:95cv1181-WHA (Doc. Nos. 31 and 33).
Where a previous habeas petition has been denied, a
nominal Rule 60(b) motion containing one or more “claims”
for

relief--that

relief

from

a

is,
...

“an

asserted

judgment

10

of

federal

basis

for

conviction”--is

in

substance

a

Gonzalez

successive

v.

Consequently,

Crosby,
to

the

petition

545

U.S.

extent

for

habeas

relief.

524,

529-34

(2005).

presents

claims

McLeod

attacking his state convictions, his instant pleading,
Doc. No. 74, is due to be treated as a successive § 2254
petition, despite his having designated the motion as one
seeking relief under Rule 60(b)(4).5
Pursuant
2244(b)(3)(A),

to

the

provisions

“[b]efore

a

See id.. At 531-32.
of

second

28
or

U.S.C.

§

successive

5. For purposes of the successive-petition rules,
McLeod’s 1991 habeas petition does not “count” as his
initial § 2254 petition because this court dismissed that
petition without prejudice. The habeas petition McLeod
filed in September 1995 is his initial § 2254 petition
for purposes of the successive-petition rules.
In
addition to his previous § 2254 habeas petitions, McLeod
also attacked his convictions and sentence in a pleading
filed in July 2009 styled as a “2241 Petition for Writ of
Habeas Corpus,” McLeod v. Culliver, Civil Action No.
1:09cv634-ID (Doc. No. 1), and again in a pleading filed
in December 2010, where McLeod purported to seek relief
under Fed.R.Civ.P. 60(b)(6) or, in the alternative, 28
U.S.C. § 2241, McLeod v. Patterson, Civil Action No.
1:10cv1074-ID (Doc. No. 1). As is the case with McLeod’s
instant pleading, this court deemed McLeod’s 2009 and
2010 challenges to be the functional equivalent of 28
U.S.C. § 2254 petitions. See Civ. Action No. 1:09cv634ID (Doc. Nos. 20, 23, and 24); Civ. Action No. 1:10c1074ID (Doc. Nos. 3-5).
11

application permitted by this section is filed in the
district

court,

the

applicant

shall

move

in

the

appropriate court of appeals for an order authorizing the
district court to consider the application.”

“A motion

in the court of appeals for an order authorizing the
district

court

to

consider

a

second

or

successive

application shall be determined by a three-judge panel of
the court of appeals” and may be granted “only if [the
assigned panel of judges] determines that the application
makes

a

prima

facie

showing

that

the

application

satisfies the requirements of [28 U.S.C. § 2244(b)(2)].”
28 U.S.C. § 2244(b)(3)(B) and (C).
McLeod has not received an order from a three-judge
panel

of

authorizing

the

Eleventh

this

court

Circuit
to

Court

consider

of
a

Appeals

successive

application for habeas corpus relief under 28 U.S.C.
§ 2254.

This court therefore lacks jurisdiction to grant

him relief to the extent he presents claims attacking his
state

convictions.

See

Gilreath

12

v.

State

Board

of

Pardons and Paroles, 273 F.3d 932, 933 (11th Cir. 2001);
Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997).
***
An appropriate order denying relief will be entered.
DONE, this the 28th day of May, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE