Stephenson v. Hobbs

Filing 74

ORDER denying as untimely 60 motion amend judgment; granting 66 motion to correct; denying without prejudice 60 , 65 , 67 supplement to motions to alter or amend pursuant to Rule 60(b) and motions for relief from judgment pursuant to Rule 60( b)(2), which this Court construes as second or successive habeas petitions pursuant to 28 U.S.C. § 2254; and concluding that a certificate of appealability issued by the Eighth Circuit granting permission to file a second or successive § 2254 petition is required before this Court may review the merits of any second or successive petition, and Mr. Stephenson has not obtained such a certificate from the Eighth Circuit. Signed by Judge Kristine G. Baker on 1/19/2023. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
DEANDRA STEPHENSON
v.

PLAINTIFF
Case No. 5:12-cv-00106-KGB

DEXTER PAYNE, Director,
Arkansas Division of Correction

DEFENDANT
ORDER

Before the Court is petitioner DeAndra Stephenson’s motion to amend judgment pursuant
to Rule 59(e) and supplement to motion to alter or amend (Dkt. No. 60). Dexter Payne, Director
of the Arkansas Division of Correction (“ADC”), responded and opposes Mr. Stephenson’s motion
(Dkt. No. 61). After Director Payne opposed Mr. Stephenson’s motion to amend judgment and
supplement to motion to alter or amend, Mr. Stephenson filed a motion for relief from judgment
pursuant to Rule 60(b)(2); motion to correct; and motion for relief from judgment pursuant to Rule
60(b)(2) (Dkt. Nos. 65; 66; 67). Director Payne has not responded to Mr. Stephenson’s additional
motions, and the time for doing so has passed. These motions are all ripe for this Court’s
consideration.
I.

Background

In prior Orders, this Court denied Mr. Stephenson’s petition for relief under 28 U.S.C. §
2254.

The Court addressed the merits of Mr. Stephenson’s claims that the evidence was

insufficient to support his convictions, the trial judge erroneously denied the motion to recuse, and
trial counsel rendered ineffective assistance because he failed to call Mr. Stephenson’s mother as
an alibi witness (Dkt. Nos. 33, 37). The Court declined to issue a certificate of appealability (Dkt.
No. 38). The Eighth Circuit Court of Appeals affirmed this Court’s decision (Dkt. Nos. 48, 49,
50).

Mr. Stephenson filed a motion for relief from judgment arguing that he is entitled to relief
under Rule 60(b)(1) and (2) of the Federal Rules of Civil Procedure (Dkt. No. 56). Mr. Stephenson
argued specifically that relief from the judgment was warranted under Rule 60(b)(2) because he
discovered “new” evidence unknown to him at trial that “would almost certainly compel a different
result” were he retried (Id., at 1-2). In support of his argument, Mr. Stephenson attached two
affidavits to his motion both of which were executed in the Spring 2019 (Id., at 8-9). This Court
concluded that Mr. Stephenson’s motion for relief from judgment was a second
or successive habeas petition subject to the requirements of 28 U.S.C. § 2244(b)(3). The Court
concluded that a certificate of appealability issued by the Eighth Circuit granting permission to file
a second or successive § 2255 petition was required. The Court denied without prejudice Mr.
Stephenson’s pending motion for relief from judgment pursuant to Rule 60(b)(1) and (2), which
the Court construed as a second or successive habeas petition pursuant to 28 U.S.C. § 2254 (Dkt.
No. 56).
II.

Discussion
A.

Motion To Amend Judgment Pursuant To Rule 59(e)

Before the Court is Mr. Stephenson’s motion to amend judgment pursuant to Rule 59(e)
and supplement to motion to alter or amend (Dkt. No. 60). Rule 59(e) motions serve the limited
function of correcting “’manifest errors of law or fact or to present newly discovered evidence.’”
United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting
Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)). The deadline for filing
such motions is short: 28 days from entry of the judgment, with no possibility of an extension.
Bannister v. Davis, 140 S. Ct. 1698, 1702 (2020) (citing Federal Rule of Civil Procedure 6(b)(2)
prohibiting extensions to Rule 59(e)’s deadline). Mr. Stephenson filed his motion to amend

2

judgment pursuant to Rule 59(e) on March 4, 2022, over seven years after this Court entered
judgment against him and nearly six years after the Eighth Circuit Court of Appeals issued its
mandate after dismissing his appeal (Dkt. Nos. 38; 48; 50). Mr. Stephenson’s Rule 59(e) motion
is denied as untimely. To the extent Mr. Stephenson seeks to raise in this motion the availability
of new evidence not previously available, the Court treats that as a motion for relief from judgment
pursuant to Rule 60(b) and will discuss it in more detail below.
B.

Motion To Correct

Before the Court is also Mr. Stephenson’s motion to correct in which he asserts that in
support of his motion for relief from judgment pursuant to Rule 60(b)(2) he attached an affidavit
from Lamarcus Dunn and an affidavit from Joseph Lee Smith (Dkt. No. 66, at 1). He claims that
when he received file marked copies of his motion only one affidavit was filed (Id.). The Court
notes the error and grants Mr. Stephenson’s motion to correct (Dkt. No. 66). The Court has
considered both the affidavits of Lamarcus Dunn and Joseph Lee Smith when ruling on Mr.
Stephenson’s motion for relief from judgment under Rule 60(b)(2) (Dkt. Nos. 60, at 4; 65, at 8-9).
C.

Motion for Relief From Judgment Pursuant To Rule 60(b)(2)

In his motions for relief from judgment pursuant to Rule 60(b)(2), Mr. Stephenson claims
that “newly discovered” evidence exonerates him of the crime of which he was convicted (Dkt.
Nos 65; 67). Mr. Stephenson attaches to his motion the affidavits of Joseph Lee Smith dated
February 21, 2022, and Lamarcus Lamont Dunn dated March 24, 2022 (Dkt. Nos. 60, at 4; 65, at
8-9). Mr. Smith states that on July 1, 2006, he, his mother, and little sister arrived at McCain Mall
in North Little Rock, Arkansas, around noon (Dkt. No. 60, at 4). As they exited the car, they heard
what sounded like fireworks (Id.). As he located where the sound was coming from, he saw a
black male shooting into a dark vehicle (Id.). Once the shooter stopped, he got into the passenger

3

seat of a tan four door car and the car sped away (Id.). The person he saw shooting was not Mr.
Stephenson (Id.).
Mr. Dunn states that on July 1, 2006, he decided to go shopping at McCain Mall in North
Little Rock, Arkansas, around 12:00 p.m. (Dkt. No. 65, at 8). As he exited the Taco Bell exit of
the Mall to get back to his car, he heard what sounded like gunshots (Id.). As he “acknowledged”
from where the shots were coming, he saw a black male “a lot darker than DeAndra Stephenson”
shooting into a dark car, and the shooter had a blue rag around his face from the nose down and
had a low haircut (Id.).
Mr. Stephenson’s newly discovered evidence again requires that the Court follow the
Eighth Circuit Court of Appeals’ instruction that district courts, when addressing purported Rule
60(b) motions following the dismissal of habeas petitions, determine whether the allegations in the
motions amount to second or successive collateral attacks 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. Again, Mr. Stephenson does not raise arguments properly asserted in a motion for
reconsideration of the denial of a Rule 60(b) motion. Instead, Mr. Stephenson asserts claims of
constitutional error in his underlying conviction that he did not raise directly in his § 2254 petition.
As a result, the Court cannot consider the claims now raised by Mr. Stephenson related to these
two affidavits unless the Eighth Circuit grants Ms. Stephenson permission to file a second or
successive § 2255 petition.

4

III.

Conclusion

The Court denies as untimely Mr. Stephenson’s motion amend judgment pursuant to Rule
59(e) (Dkt. No. 60). The Court grants Mr. Stephenson’s motion to correct and has considered the
affidavits of both Lamarcus Dunn and Joseph Lee Smith when ruling on Mr. Stephenson’s motion
for relief from judgment pursuant to Rule 60(b)(2) (Dkt. No. 66). The Court denies without
prejudice Mr. Stephenson’s supplement to motions to alter or amend pursuant to Rule 60(b) and
motions for relief from judgment pursuant to Rule 60(b)(2), which this Court construes as second
or successive habeas petitions pursuant to 28 U.S.C. § 2254 (Dkt. Nos. 60; 65; 67). The Court
concludes that a certificate of appealability issued by the Eighth Circuit granting permission to file
a second or successive § 2254 petition is required before this Court may review the merits of any
second or successive petition, and Mr. Stephenson has not obtained such a certificate from the
Eighth Circuit.
So ordered this the 19th day of January, 2023.

_______________________________
Kristine G. Baker
United States District Judge

5