Martin v. Roberts, et al
Filing
104
MEMORANDUM AND ORDER ENTERED: The pending motion to recall the mandate is liberally construed as a motion filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and, in turn, as as successive application for habeas corpus. The clerk of the court shall transfer the motion 102 and the motion 103 to file supplemental pleadings to the U.S. Court of Appeals for the Tenth Circuit for authorization pursuant to 28 U.S.C. 2244(b)(3). Signed by Senior District Judge Sam A. Crow on 8/31/2011. (Mailed to pro se party Frederick Martin by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FREDERICK MARTIN,
Petitioner,
CIVIL ACTION
No. 87-3273-SAC
vs.
RAYMOND ROBERTS,
Respondent.
MEMORANDUM AND ORDER
This matter comes before the court on petitioner’s motion
to recall the mandate (Doc. 102) and his motion for leave to add
supplemental pleadings to that motion (Doc. 103).
This matter is a petition for habeas corpus filed pursuant
to 28 U.S.C. § 2254.
1991.
The petition was denied on January 8,
The decision was affirmed on appeal on July 13, 1992, and
the United States Supreme Court denied certiorari later that
year.
In 2003, petitioner filed a motion for clarification, which
the court denied.
Thereafter, he filed a series of motions and
a second notice of appeal.
In June 2005, the United States
Court of Appeals denied his motion for authorization to file a
successive application under § 2254.
In November 2005, petitioner was ordered to obtain leave of
the court before filing additional pleadings in this action.
In
2007, he filed a notice of his intent to file a motion for
relief from judgment, a motion for relief from judgment, and a
motion to appoint counsel.
The court denied these motions,
reminded petitioner that he must seek leave of the court before
filing any additional pleadings, and advised him that he must
strictly comply with the directions set forth.
Petitioner
then
filed
a
motion
for
leave
additional filings, which the court denied.
to
submit
Petitioner next
filed a motion for findings of fact and conclusions of law,
which the court denied.
Petitioner filed a notice of appeal, and, in August 2008,
the U.S. Court of Appeals entered two appeal mandates dismissing
the appeal.
In May 2011, petitioner filed the present motion to recall
the mandate, and in August 2011, he filed a motion for leave to
add supplemental pleadings to that motion. Despite petitioner’s
failure to comply with the order of this court requiring him to
seek leave of this court before filing any additional pleadings
in this matter, the court has examined them and finds the motion
to recall the mandate asks the court “to recall the judg[]ment
entered
on
January
8,
1001,
and
2
grant
him
an
evidentiary
hearing” so that he may challenge the court’s ruling on his
claim of double jeopardy (Doc. 102, p. 1.)
Based upon the relief petitioner seeks, the court concludes
his motion should be liberally construed as a motion for relief
from judgment filed pursuant to Rule 60(b) of the Federal Rules
of Civil Procedure.
Such a motion, however, is viewed as a second or successive
application for habeas corpus where it “in substance or effect
asserts
or
reasserts
a
federal
basis
petitioner’s underlying conviction.”
for
relief
from
the
Spitznas v. Boone, 464
F.3d 1213, 1214 (10th Cir. 2006). Here, because petitioner again
challenges his convictions of both felony murder and aggravated
kidnapping on double jeopardy grounds, the court concludes he is
presenting a successive application for habeas corpus relief.
Because such a successive application must be authorized by
the appropriate court of appeals, see 28 U.S.C. § 2244(b)(3),
the court will direct the clerk of the court to transfer the
present motions to the United States Court of Appeals for the
Tenth Circuit.
IT IS, THEREFORE, BY THE COURT ORDERED the pending motion
to recall the mandate is liberally construed as a motion filed
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure,
and, in turn, as a successive application for habeas corpus.
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IT IS FURTHER ORDERED the clerk of the court shall transfer
the motion (Doc. 102) and the motion to file supplemental
pleadings (Doc. 103) to the U.S. Court of Appeals for the Tenth
Circuit for authorization pursuant to 28 U.S.C. § 2244(b)(3).
Copies of this order shall be transmitted to the parties
and to the Clerk of the U.S. Court of Appeals.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 31st day of August, 2011.
S/ Sam A. Crow
SAM A. CROW
United States Senior District Judge
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