Clemmons v. Davies
MEMORANDUM AND ORDER ENTERED: The motion for relief from judgment 56 is construed as a hybrid pleading containing claims that present a successive application for habeas corpus and claims that seek relief from judgment. The motion is denied in pa rt and dismissed in part. The court denies relief on the claims identified herein as proper in a motion for relief from judgment. The court dismisses the claims that present a successive application for habeas corpus for lack of jurisdiction. Signed by U.S. Senior District Judge Sam A. Crow on 04/07/17. Mailed to pro se party Edward Lee Clemmons by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EDWARD LEE CLEMMONS,
CASE NO. 90-3035-SAC
STEVEN J. DAVIES,
MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§2254. Petitioner was convicted in 1984 of one count of first degree
murder, two counts of aggravated robbery, and one count of unlawfully
possessing a firearm. On February 25, 1992, the Honorable Dale E.
Saffels of this court denied relief. Clemmons v. Davies, 1992 WL 50579
(D. Kan. Feb. 25, 1992). On August 24, 1992, the U.S. Court of Appeals
for the Tenth Circuit dismissed petitioner’s appeal for lack of
prosecution (Doc. #23).
Petitioner has filed repeated motions for post-conviction
relief: a motion for rehearing in January 2003 (Doc. #25), a motion
for relief from order and judgment in May 2007 (Doc. #38), and a motion
for relief from judgment in March 2015 (Doc. #54). These filings have
been treated as successive applications for habeas corpus.
On March 24, 2017, he again filed a motion for relief from
judgment (Doc. #56) and a notice of filing (Doc. #57). On April 3,
2017, he filed a supplement to the motion (Doc. #58).
A post-judgment motion filed in a habeas corpus action should
be treated as a second or successive application under Section 2254
if it asserts or reasserts claims of error in the petitioner’s
conviction. See Gonzalez v. Crosby, 545 U.S. 524, 531-32, 538 (2005);
Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006). Such a
motion requires prior authorization from the appropriate federal
appeals court to proceed. See 28 U.S.C. § 2244(b).
In contrast, a post-judgment motion that attacks “not the
substance of the federal court’ resolution of a claim on the merits,
but some defect in the integrity of the federal habeas proceedings”,
Gonzalez, 545 U.S. at 532, does not require prior authorization under
The court finds this pleading is a hybrid, containing both claims
that must be construed as a successive application for habeas corpus
relief and claims that may be raised in a post-judgment motion.
First, petitioner’s motion alleges “a case of interstate fraud
upon the state courts of Missouri and Kansas, and the federal district
courts of the Western District of Missouri (Kansas City), and, the
District of Kansas” (Doc. #56, p. 1); he also claims there was
obstruction of justice by two individuals1 and error by his appellate
counsel (id., p. 2), and that the 2003 destruction of trial exhibits
foreclosed his ability to have those items independently tested (id.,
These allegations all appear to present claims that allege error
in petitioner’s conviction rather than in the prior habeas corpus
proceeding, and the court finds petitioner must seek prior
authorization to pursue relief on these grounds.
Petitioner also broadly alleges that the habeas corpus action
The pleading identifies these individuals as Mary Cheyney, who identified
plaintiff as her assailant in a police line-up and Charlotte Johnson, who gave police
consent to search the residence occupied by petitioner.
was decided on an incomplete state record, citing the lack of records
of his initial arrest and of extradition proceedings conducted in the
State of Missouri (id., p. 3.). Finally, he alleges he has discovered
new material facts concerning the police line-up in which he was
identified. The court finds these claims challenge the integrity of
the habeas corpus review conducted in this case and are properly
presented in motion for relief from judgment.
Under Rule 60(b) of the Federal Rules of Civil Procedure, the
court may grant relief from a final judgment for reasons including
newly discovered evidence, fraud, or “any other reason that justifies
relief”. However, a motion under Rule 60(b)(2), alleging
newly-discovered evidence, or Rule 60(b)(3) alleging fraud or
misconduct, must be made no more than a year after the entry of
judgment. See Rule 60(c)(1)(a motion under Rule 60(b) must be made
within a reasonable time, but motions based upon certain grounds must
be made within a year after the entry of the judgment). Petitioner’s
motion for relief from judgment was filed more than twenty years after
the denial of his petition and must be denied.
In any event, the order denying habeas corpus relief thoroughly
discussed, and rejected, the petitioner’s allegation that the line-up
in which he was identified by one of the victims was impermissibly
suggestive2. The materials offered by petitioner do not show any ground
Accordingly, the court denies the motion for relief from judgment
The order explained: “Here five line-up participants were being brought into the
line-up room. When petitioner, who was the second participant, entered the room,
the victim identified him and left. She did not return to view the other participants.
The victim later made in-court identifications of petitioner at both the preliminary
hearing and the trial.” The court applied Neil v. Biggers, 409 U.S. 188 (1972) and
concluded the identification, viewed under the totality of the circumstances, was
reliable. Clemmons v. Davies, 1992 WL 50579, *3 (D.Kan. Feb. 25, 1992).
on the grounds of an incomplete record and newly-discovered facts as
The remaining grounds, which the court construes as a successive
application for habeas corpus requiring prior authorization from the
Tenth Circuit Court of Appeals, are dismissed for lack of
jurisdiction. The court concludes that the interests of justice do
not require the transfer of this matter. See In re Cline, 531 F.3d
1249, 1252 (10th Cir. 2008)(the district court may transfer a
successive application to the court of appeals if that transfer is
in the interest of justice or may dismiss the petition for lack of
IT IS, THEREFORE, BY THE COURT ORDERED the motion for relief from
judgment (Doc. #56) is construed as a hybrid pleading containing
claims that present a successive application for habeas corpus and
claims that seek relief from judgment. The motion is denied in part
and dismissed in part. The court denies relief on the claims identified
herein as proper in a motion for relief from judgment. The court
dismisses the claims that present a successive application for habeas
corpus for lack of jurisdiction.
IT IS SO ORDERED.
This 7th day of April, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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