Scott v. Norris

Filing 58

ORDER denying 48 Mr. Scott's motion for relief from judgment and denying as moot all other pending motions. Signed by Judge Kristine G. Baker on 7/25/2014. (ljb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
RICKEY L. SCOTT
v.

PETITIONER
Case No. 5:04-cv-00082-KGB

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

In March 2004, petitioner Rickey L. Scott commenced this action by filing a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking his conviction for capital murder
in the Circuit Court of Cross County, Arkansas, for which he is serving a term of life
imprisonment without parole. The Court dismissed Mr. Scott’s petition after addressing the
merits of his claim of ineffective assistance of appellate counsel and some of his claims of
ineffective assistance of trial counsel, finding the other claims procedurally defaulted, and
finding that Mr. Scott’s claims of actual innocence did not satisfy the standard under Schulp v.
Delo, 523 U.S. 298 (1995) (Dkt. Nos. 28, 33). The Court entered judgment on the dismissal on
December 6, 2005 (Dkt. No. 34).
Mr. Scott now brings his motion for relief from judgment pursuant to Rule 60(b)(6) of the
Federal Rules of Civil Procedure (Dkt. No. 48). Respondent Ray Hobbs has responded (Dkt. No.
56), and Mr. Scott has replied (Dkt. No. 57). The Court denies Mr. Scott’s motion (Dkt. No. 48).
The Eighth Circuit has instructed district courts, when addressing purported Rule 60(b)
motions following the dismissal of habeas petitions, to determine whether the allegations in the
motion amount to a second or successive collateral attack under either 28 U.S.C. § 2255 or 28
U.S.C. § 2254. See Boyd v. United States, 304 F.3d 813, 814 (8th Cir.2002). If it is determined
that the motion is actually a second or successive habeas petition, it should be dismissed for

failure to obtain authorization from the Court of Appeals as required by 28 U.S.C §
2244(b)(3)(A) or the district court may, in its discretion, transfer the purported Rule 60(b)
motion to the Court of Appeals.
A Rule 60(b) motion is a second or successive habeas corpus application if it contains a
“claim.” See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); Ward v. Norris, 577 F.3d 925, 933
(8th Cir. 2009). For these purposes, “claim is defined as an ‘asserted federal basis for relief from
a state court’s judgment of conviction’ or as an attack on the ‘federal court’s previous resolution
of the claim on the merits.’” Ward, 577 F.3d at 933 (quoting Gonzalez, 545 U.S. at 530, 532).
On the other hand, no claim is presented if the motion attacks “some defect in the integrity of the
federal habeas proceedings.” Gonzalez, 545 U.S. at 532. Likewise, a motion does not attack a
federal court’s determination “on the merits” if it “merely asserts that a previous ruling which
precluded a merits determination was in error—for example, a denial for such reasons as failure
to exhaust, procedural default, or statute-of-limitations bar.” Id. at n.4; Ward, 577 F.3d at 933.
Mr. Scott’s primary request for relief is his challenge to the Court’s determination that
certain of his claims were procedurally defaulted, relying on the Supreme Court’s recent
decisions in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911
(2013). Prior to Martinez, the Court held in Coleman v. Thompson, 501 U.S. 722, 753-54
(1991), that ineffective assistance of counsel in a state post-conviction proceeding does not
provide cause to excuse procedural default. In Martinez, the Court created “a narrow exception”
to the Coleman rule, holding that “a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id. at 1315,
1320. In Trevino v. Thaler, 133 S. Ct. 1911 (2013), the Supreme Court held that this exception

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also applies where “state procedural framework, by reason of its design and operation, makes it
highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a
claim of ineffective assistance of trial counsel on direct appeal.” Id. at 1921. See also Sasser v.
Hobbs, 735 F.3d 853 (8th Cir. 2013) (finding that Arkansas’s post-conviction appeal process
does not, “as a systematic matter,” afford indigent defendants a “meaningful review of a claim of
ineffective assistance of trial counsel” on direct appeal (quoting Trevino, 133 S.Ct. at 1919)).
To the extent Mr. Scott challenges under Martinez and Trevino the Court’s previous
determination that certain of his claims of ineffective assistance were procedurally defaulted, his
Rule 60(b)(6) motion is not a successive habeas petition. Adams v. Thaler, 679 F.3d 312, 319
(5th Cir. 2012); DeJournett v. Luebbers, No. 4:01-CV-1341 CEJ, 2014 WL 81837, at *2 (E.D.
Mo. Jan. 9, 2014). However, this Court follows the many other courts that have considered the
matter and determines that the rule announced in Martinez and Trevino does not provide a basis
for relief under Rule 60(b)(6).
To warrant relief from a judgment under Rule 60(b)(6) of the Federal Rules of Civil
Procedure, the motion must demonstrate “extraordinary circumstances.” Gonzalez, 545 U.S. at
535. “Generally, a change in the law that would have governed the dispute, had the dispute not
already been decided, is not by itself an extraordinary circumstance.” Kansas Pub. Employees
Ret. Sys. v. Reimer & Koger Assocs., Inc., 194 F.3d 922, 925 (8th Cir. 1999); see Carlson v.
Hyundai Motor Co., 222 F.3d 1044, 1045 (8th Cir. 2000). Notably, in Gonzalez, the Supreme
Court found that a change in decisional law regarding the statute of limitations under the
Antiterrorism and Effective Death Penalty Act did not constitute extraordinary circumstances
under Rule 60(b)(6). 545 U.S. at 536-37.

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Although the Eighth Circuit has not yet addressed this issue, numerous other courts have
found that the new rule on procedural default under Martinez and Trevino does not constitute
extraordinary circumstances. See Cooper v. Bell, No. 1:03-CV-276, 2014 WL 1366517, at *5
(E.D. Tenn. Apr. 7, 2014) (collecting cases); Ferguson v. Hobbs, No. 5:11CV00267-SWW-JJV,
2013 WL 4431294, at *2 & n.2 (E.D. Ark. Aug. 16, 2013) (agreeing with “numerous other
courts” that the Martinez rule does not constitute extraordinary grounds under Rule 60(b)(6));
see also Hill v. Hobbs, No. 5:13-cv-00015-JLH, slip op. at 3 (E.D. Ark. June 6, 2014) (“In view
of the overwhelming authority holding that the new rule announced in Martinez and Trevino
does not justify relief under Rule 60(b)(6), Hill’s motion must be denied.”). This Court agrees.
Other than his arguments based on Martinez and Trevino, Mr. Scott contends that he has
presented new evidence on his claim of actual innocence, and he attempts to reargue claims that
the Court addressed on the merits. Mr. Scott’s motion for Rule 60(b)(6) relief based on these
arguments constitutes a successive habeas petition.

See Gonzalez, 545 U.S. at 530-31.

Accordingly, to the extent his motion seeks Rule 60(b)(6) relief other than as to the Court’s
previous determinations as to his defaulted claims, Mr. Scott’s motion is denied as a successive
petition that was filed without authorization from the Eighth Circuit Court of Appeals.
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Mr. Scott’s motion for relief from judgment pursuant to Rule 60(b)(6) is denied (Dkt. No.
48). All other pending motions are denied as moot.
SO ORDERED this the 25th day of July, 2014.

____________________________________
Kristine G. Baker
United States District Judge

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