Jones v. Norris, CORR AR
ORDER ADOPTING 78 REPORT AND RECOMMENDATIONS, denying 77 Amended Document and denying 82 Motion for Leave to File an Amended and/or Supplemental Motion. Signed by Honorable Harry F. Barnes on September 10, 2015. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MICHAEL L. JONES
Case No. 4:99-cv-4134
WENDY KELLY, Director,
Arkansas Department of Corrections
Before the Court is the Report and Recommendation filed March 12, 2015 by the Honorable
Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No.
78). Judge Bryant recommends that Plaintiff’s Motion for Relief from Judgment pursuant to Fed.
R. Civ. P. 60(b)(6), seeking relief from the judgment which dismissed his petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (ECF No. 77), be denied. Plaintiff has filed objections to the
Report and Recommendation. (ECF No. 81). After reviewing the record de novo, the Court adopts
Judge Bryant’s Report and Recommendation as its own.
Plaintiff was convicted of capital murder in Hempstead County, Arkansas in 1996. Plaintiff
directly appealed his conviction and was denied. See Jones v. State, 328 Ark. 307, 942 S.W.2d 851
(Ark. 1997). In June 1997, Plaintiff filed a timely petition for post-conviction relief pursuant to Ark.
R. Crim. P. 37. The trial court denied his petition and the Arkansas Supreme Court dismissed
Plaintiff’s appeal. See Jones v. State, 1999 WL 360268 (Ark. June 3, 1999) per curiam. In 1999,
Plaintiff filed his first Petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in this Court.
(ECF No. 1). After a hearing, this Court denied the petition as procedurally barred. (ECF Nos. 4546). Plaintiff’s subsequent request for a certificate of appealability was denied by the Eighth Circuit
in May 2001. (ECF No. 72). Plaintiff applied for permission to file a successive habeas corpus
petition in April 2002. (ECF No. 73). This request was denied by the Eighth Circuit in July 2002.
(ECF No. 74).
In February 2014, Jones filed a petition asking for permission to file a successive habeas
corpus petition with the Eighth Circuit indicating that he wanted to raise ineffective assistance of
counsel claims arising out of his 1996 conviction. Conceding that his claims were procedurally
defaulted, Plaintiff asserted that such default should be excused pursuant to a new, retroactive rule
of constitutional law. Plaintiff cited Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), and
Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911 (2013) to support his position. The Eighth Circuit,
without addressing the merits of his case, denied his request to file a new petition. (ECF No. 75).
See Jones v. Hobbs, No. 14-1342, (8th Cir. 2014). Plaintiff subsequently filed the present motion
on March 4, 2015 (ECF No. 76) and an amended motion on March 6, 2015 (ECF No. 77) asking for
Rule 60(b) relief.
Plaintiff makes many objections to Judge Bryant’s Report and Recommendation. (ECF No.
81). In these objections, Plaintiff rehashes the same arguments that he has previously made to the
Court and offers no specific objections to the Report and Recommendation that would justify
departure from its findings. The Court agrees with Judge Bryant that Plaintiff’s claim ultimately
fails due to the fact that this is a successive habeas corpus petition disguised as a Rule 60(b)(6)
motion. Although he filed the motion under Rule 60(b), this motion states a claim that was
unsuccessfully brought by the petitioner in a previous proceeding.
A Rule 60(b) motion is a successive habeas corpus application if it contains a claim. Ward
v. Norris, 577 F.3d 925, 933 (8th Cir. 2009). A claim is defined as an “asserted federal basis from
relief from a state court’s judgment of conviction” or as an attack on the “federal courts previous
resolution of the claims on the merits.” Id. (quoting Gonzalez v. Crosby, 545 U.S. 524, 530 (2005)).
“On the merits” refers to a determination regarding the existence of grounds entitling a petition to
habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d). Gonzalez at 532. Although brought as a
Rule 60(b)(6) motion, Plaintiff is attempting to use the same argument that he used in his
unsuccessful habeas petition before the Eighth Circuit. As the Eighth Circuit has previously ruled
on his claim, this Court does not have the proper jurisdiction to hear this successive petition.
This case can be distinguished from cases that were successful in putting forth Rule 60(b)
arguments. In Gonzalez, for example, the prisoner was challenging the fact that his previous petition
had procedurally defaulted. Id. Here, Plaintiff is not challenging the fact that there was a procedural
default or any other type of procedural issue. Plaintiff even admits that he procedurally defaulted
in his response. In sum, Plaintiff is attempting to present new evidence and re-open his previously
filed claims. This amounts to a collateral attack on his conviction and sentence, something that is
properly brought in a habeas corpus petition.
Judge Bryant is also correct in stating that, even if the cases cited by Plaintiff have announced
a new rule of constitutional law, Plaintiff must first obtain permission from the appropriate court of
appeals prior to filing a successive petition. This is due to the fact that Plaintiff previously brought
forth a habeas corpus challenge to his imprisonment. In determining whether these new claims can
be brought forward, the Eighth Circuit must determine that the claim has not been previously raised
and that it is sufficient to meet § 2244(b)(2)’s new rule provisions. Ward, 577 F.3d. at 932. Because
Plaintiff has not received permission to file a successive petition, this Court does not have
The Court overrules Plaintiff’s objections and adopts Judge Bryant’s Report and
Recommendation. (ECF No. 78). For the reasons stated herein and above, as well as those
contained in the Report and Recommendation, Plaintiff’s Motion for Relief from Judgment pursuant
to Fed. R. Civ. P. 60(b)(6) (ECF No. 77) is DENIED.
Also before the Court is Plaintiff’s Motion for Leave to file an Amended and/or
Supplemental Motion. (ECF No. 82). In this additional motion, Plaintiff asks to amend his original
motion by adding case law that he claims he did not have the opportunity to include in his original
motion. The Court finds that allowing an amendment would be futile. Even if Plaintiff were to add
additional case law to support his position, it would not change the fact that this is a successive
habeas petition that was denied by the Eighth Circuit. In order for this Court to have jurisdiction,
Plaintiff must comply with procedural requirements which he has not yet met. For the reasons stated
herein and above, Plaintiff’s Motion for Leave to file an Amended and/or Supplemental Motion
(ECF No. 82) is DENIED.
IT IS SO ORDERED, this 10th day of September, 2015.
/s/ Harry F. Barnes
Harry F. Barnes
United States District Judge
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