Clemmons v. Davies

Filing 90

ORDER ENTERED: Petitioner's motions (Docs. 86 , 87 and 88 are denied. Signed by U.S. Senior District Judge Sam A. Crow on 05/27/20. Mailed to pro se party Edward Lee Clemmons by regular mail. (smnd)

Case 3:90-cv-03035-SAC Document 90 Filed 05/27/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EDWARD LEE CLEMMONS,
Petitioner,
v.

CASE NO. 90-3035-SAC

STEVEN J. DAVIES,
Respondent.

O R D E R
This matter is a petition for habeas corpus filed in February
1990. The petition was denied in February 1992, and the appeal was
dismissed in August 1992. Since then, petitioner has filed a variety
of motions for relief, and the Tenth Circuit has considered this matter
a total of five times. The action is now before the Court on
petitioner’s motions for relief from judgment (Docs. 86 and 87) and
on his motion for oral argument (Doc. 88). The Court also has
considered petitioner’s memorandum in support of the motion for
argument (Doc. 89).
The motions for relief
In his first motion for relief from judgment, petitioner asserts
he was not notified of the right to reply in his petition. In his second
motion for such relief, petitioner broadly alleges fraud by counsel
for the respondent and claims it was error to deny habeas corpus relief
without an evidentiary hearing, the appointment of counsel, and
discovery.
Discussion
The Court first must consider whether petitioner’s motions are
properly considered as challenges to the integrity of the earlier

Case 3:90-cv-03035-SAC Document 90 Filed 05/27/20 Page 2 of 3

proceedings or whether they are a successive application for habeas
corpus relief. In the context of habeas corpus, a motion for relief
filed under Rule 60(b) of the Federal Rules of Civil Procedure is a
true 60(b) 1 motion “if it either (1) challenges only a procedural
ruling of the habeas court which precluded a merits determination of
the habeas application, … or (2) challenges a defect in the integrity
of the federal habeas proceeding, provided that such a challenge does
not itself lead intextricably to a merits-based attack on the
disposition of a prior habeas petition.” Spitznas v. Boone, 464 f.3d
1213, 1215-16 (10th Cir. 2006). The Court finds petitioner presents
challenges which may be considered under Rule 60 rather than a
successive application for relief requiring prior authorization from
the Tenth Circuit.
Petitioner proceeds under Federal Rule of Civil Procedure
60(d)(1) and (2). Rule 60(d)(1) allows the courts to “entertain an
independent action to relieve a party from a judgment, order, or
proceeding.” Fed. R. Civ. P. 60(d)(1). However, it is settled that
“an independent action should be available only to prevent a grave
miscarriage of justice.” United States v. Beggerly, 524 U.S. 38, 47
(1998).
Rule 60(d)(2) allows the federal courts to “grant relief under
28 U.S.C. § 1655 to a defendant who was not personally notified of
the action”.
A review of the petition conclusively shows that petitioner is
not entitled to relief on his claims. First, his claim that he did
not have an opportunity to reply to the response to the petition is

The Court notes that petitioner cited Rule 60(d)(1) and (2) as supporting his
requests for relief.
1

Case 3:90-cv-03035-SAC Document 90 Filed 05/27/20 Page 3 of 3

incorrect. The record shows that the Answer and Return was filed on
May 4, 1990, and that petitioner filed a motion for leave to file a
reply out of time on August 23, 1990. He filed the reply on September
4, 1990. Petitioner was aware of the opportunity to file a reply to
the Answer and Return and did so.
Next, petitioner broadly claims he should have been afforded an
evidentiary hearing, appointed counsel, and had discovery in this
matter. A habeas petitioner is not entitled to these but may be granted
such in an appropriate case. See, e.g., Swazo v. Wyo. Dept. of Corr.
State

Penitentiary

Warden,

23

F.3d

332,

333

(10th

Cir.

1994)(appointment of counsel in habeas corpus actions ordinarily is
“left to the court’s discretion”); Rule 8, Rules Governing Habeas
Corpus (court to “determine whether an evidentiary hearing is
required”). Petitioner makes only bare claims and has not demonstrated
that the failure to provide counsel or allow expansion of the record
resulted in either prejudice or “a grave miscarriage of justice”.
Conclusion
The Court finds petitioner is not entitled to relief from
judgment in this matter under Fed. R. Civ. P. 60(d)(1) and (2).
Finally, the Court advises petitioner that future motions are subject
to summary denial.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motions
(Docs. 86, 87, and 88) are denied.
IT IS SO ORDERED.
DATED:

This 27th day of May, 2020, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge