Smith v. Jarriel

Filing 76

ORDER dismissing 70 Motion to Vacate as successive and denying a Certificate of Appealability ; finding as moot 75 Motion for Reconsideration. Ordered by U.S. District Judge W LOUIS SANDS on 3/27/2014. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
WENDELL HARPER SMITH,

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Plaintiff,
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v.
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Warden DON JARRIEL,
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Defendant.
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CASE NO.: 1:07-cv-10 (WLS)

ORDER
Before the Court is Petitioner Wendell Harper Smith’s Motion to Vacate Void
Judgment and Conviction. (Doc. 70.) In the motion, Smith attempts to vacate his state
conviction for murder under Rule 60(b) of the Federal Rules of Civil Procedure. Because
Smith’s motion is in substance a successive petition, and the Eleventh Circuit has not
granted leave to file a successive petition, the Court denies relief.
As background, Smith is serving a life sentence for malice murder and a
consecutive ten-year sentence for concealing the death of another. His convictions and
sentences were upheld on direct appeal. On January 10, 2007, he filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2254 in this Court. Among other claims, he
alleged in his petition that the trial court abused its discretion by introducing prejudicial
photographs of the murder victim and that the evidence was insufficient to support his
convictions. The Court denied Smith’s petition and denied him a certificate of
appealability. The Eleventh Circuit denied Smith a certificate of appealability. He filed a
motion for reconsideration, which the Eleventh Circuit denied as untimely.
Now Smith has filed a motion to vacate under Rule 60. In his motion, Smith
argues (1) that the Eleventh Circuit erred in denying his motion for reconsideration, (2)
that the introduction of prejudicial photographs violated the Fourteenth Amendment’s

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Due Process and Equal Protection clauses; (3) that the state committed prosecutorial
misconduct by introducing prejudicial photographs; and (4) that the evidence was
insufficient and varied from the allegations in the indictment.
Looking beyond the label of Smith’s motion, it is clear that he attempting to
advance new claims for relief or attack the Court’s previous resolution of his claims on
the merits. As such, Smith’s motion must be treated as a second or successive habeas
petition. See Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005); see also Franqui v. Florida, 638
F.3d 1368, 1374 (11th Cir. 2011) (holding that petition’s Rule 60 motion was in effect a
successive petition because he “has pointed out no defect in the integrity of the federal
habeas proceedings that wonder render his Rule 60(b) motion permissible”). And this
Court lacks jurisdiction and must dismiss a successive petition filed without the
Eleventh Circuit’s prior certification. 28 U.S.C. § 2244(b). In addition, Smith cannot
relitigate issues decided on an earlier appeal under the law of the case doctrine. United
States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005).
Smith’s petition (Doc. 70) is DISMISSED as successive, and a Certificate of
Appealability is DENIED. The Motion for Reconsideration (Doc. 75) is DENIED as
moot.
SO ORDERED, this

27th

day of March, 2014.
/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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