Boyle v. Norris
ORDER denying petitioner Shannon David Boyle's pro se motion for relief from judgment and granting 23 Motion of respondent Wendy Kelly to substitute Kelly Fields as attorney for respondent. Signed by Judge Susan Webber Wright on 1/16/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
SHANNON DAVID BOYLE,
WENDY KELLY, Director,
Arkansas Department of Correction,
Before the Court is a pro se motion of petitioner Shannon David Boyle for relief
from judgment pursuant to Fed.R.Civ.P. 60(b)(5) and (6) [doc.#22]. Respondent Wendy
Kelly, Director of the Arkansas Department of Correction, has responded in opposition to
Boyle’s motion.1 For the reasons that follow, the Court denies Boyle’s Rule 60(b)
motion. The Court also grants the motion [doc.#23] of respondent Wendy Kelly to
substitute Kelly Fields as attorney for respondent.
Boyle was convicted in state court of aggravated robbery and theft of property.
Following various state-court proceedings, Boyle filed a 28 U.S.C. § 2254 petition for
writ of habeas corpus alleging, inter alia, that he received ineffective assistance of
counsel. By Order and Judgment entered November 29, 2006 [doc.#’s 16, 17], the Court
dismissed Boyle’s § 2254 petition with prejudice as untimely. Boyle did not appeal.
Wendy Kelly was recently named director of the Arkansas Department of Correction
and is automatically substituted as a party pursuant to Fed.R.Civ.P. 25(d).
On May 28, 2014, Boyle filed a pro se motion for relief from judgment pursuant to
Fed.R.Civ.P. 60(b)(6) [doc.#19]. Boyle sought review of his claims pursuant to recent
decisions of the Supreme Court of the United States in Martinez v. Ryan, 132 S.Ct. 1309
(2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013).2 By Order entered June 2, 2014
[doc.#21], the Court denied Boyle’s Rule 60(b)(6) motion, finding that the Supreme
Court’s decisions in Martinez and Trevino do not constitute “extraordinary
circumstances” meriting Rule 60(b) relief.
Following this Court’s denial of Boyle’s Rule 60(b) motion, Boyle, on June 18,
2014, sought permission of the United States Court of Appeals for the Eighth Circuit to
file a second or successive § 2254 petition. By Judgment dated November 18, 2014, the
Eighth Circuit denied Boyle permission to file a successive § 2254 petition. Boyle v.
Hobbs, No. 14-2451 (8th Cir. Nov. 18, 2014). Thereafter, Boyle, on December 30, 2014,
filed the motion for relief from judgment pursuant to Rule 60(b)(5) and (6) now before
As grounds for Rule 60(b)(5) and (6) relief, Boyle asserts abandonment of counsel,
denial of counsel, failure of the trial court to inquire into conflict of interest during Rule
37 post-conviction proceedings, actual innocence, and fundamental miscarriage of justice
due to denial of counsel. To the extent Boyle’s issues do not constitute “claims” for
These cases held that a federal habeas court may excuse a procedural default of a
substantial claim of ineffective-assistance at trial when the claim was not properly presented in
state court due to an attorney’s errors in an initial-review collateral proceeding.
purposes of a second or successive attack under § 2254 and are properly asserted in
Boyle’s Rule 60(b) motion,3 the Court nevertheless denies Boyle’s Rule 60(b) motion.
Rule 60(b)(5) does not apply to Boyle’s motion, see, e.g., Graves v. Beard, Civil Action
No. 2:10-cv-00894, 2014 WL 7183404, *1-2 (W.D. Pa. Dec. 16, 2014) (Rule 60(b)
motion challenging denial of habeas relief did not satisfy or meet the criteria necessary to
be considered as a Rule 60(b)(5) motion), and his issues under Rule 60(b)(6) are vague
and conclusory. Boyle only lists the above issues and a Table of Authorities; he does not
brief or otherwise provide context for these issues but merely attaches what appear to be a
portion of an earlier brief, a letter from the Arkansas Supreme Court Committee on
Professional Conduct, a portion of an Arkansas Court of Appeals decision, the Magistrate
Judge’s 2006 Report and Recommendations and this Court’s order adopting same, a 2007
affidavit from his mother, and emails apparently between his attorney and his mother
dating from 2006. Boyle simply has not shown extraordinary circumstances in this case
to justify Rule 60(b)(6) relief. See Gonzalez, 545 U.S. at 535 (requiring a movant seeking
relief under Rule 60(b)(6) to show “extraordinary circumstances” justifying the reopening
of a final judgment and noting that “[s]uch circumstances will rarely occur in the habeas
context.”). See also City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 702
F.3d 1147, 1155 (8th Cir. 2013) (noting that “relief under Rule 60(b)(6) remains ‘an
See Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009) (noting that a Rule 60(b) motion
is a second or successive habeas corpus application if it contains a “claim,” which is “defined as
an ‘asserted federal basis for relief from a state court’s judgment of conviction’ or as an attack
on the ‘the federal court’s previous resolution of a claim on the merits.’” (quoting Gonzalez v.
Crosby, 545 U.S. 524, 532 (2005)),
extraordinary remedy’ for ‘exceptional circumstances.’”) (quoting In re Zimmerman, 869
F.2d 1126, 1128 (8th Cir. 1999)).4
For the foregoing reasons, the Court denies petitioner Shannon David Boyle’s pro
se motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(5) and (6) and grants
the motion [doc.#23] of respondent Wendy Kelly to substitute Kelly Fields as attorney for
IT IS SO ORDERED this 16th day of January 2015.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
Moreover, the Court agrees with respondent that Boyle did not file his motion, which
again relies, inter alia, on Martinez and Trevino, within a reasonable time as required by
Fed.R.Civ.P. 60(c). Cf. In re Paredes, — Fed.Appx. —, 2014 WL 5420533, *1 (5th Cir. Oct. 25,
2014) (Rule 60(b) motion filed 30 months after Supreme Court’s decision in Martinez and 17
months after Supreme Court’s decision in Trevino was not filed within a reasonable time after
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