Cross v. White

Filing 79

OPINION AND ORDER: For the reasons stated in the accompanying order, the Court transfers to the Sixth Circuit Court of Appeals Petitioner's motion for relief from judgment (DN 72 ). cc: Counsel, USCA(JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
QUINCY OMAR CROSS
v.

No. 5:15-cv-158

CRAIG HUGHES
* * * * *
OPINION & ORDER DENYING RECONSIDERATION AND
TRANSFERRING TO THE COURT OF APPEALS
Quincy Omar Cross has asked this Court to “revisit” its 2022 denial of his
petition for a writ of habeas corpus. That petition, filed under 28 U.S.C. § 2254,
challenged Cross’s 2008 conviction for the kidnapping, rape, and murder of Jessica
Currin. In support of habeas relief, Cross advanced claims of due-process violations,
actual innocence, and ineffective assistance of counsel. This Court’s 2022 opinion,
which sets out the history of this litigation in far greater detail, held that Cross’s
claims failed both procedurally (because they were defaulted and in some respects
not proper habeas claims) and substantively (because the issues Cross raised in
federal court had been reasonably adjudicated by state courts). See generally Habeas
Opinion (DN 70).
Now Cross seeks reconsideration of that denial based on newly discovered
evidence (including allegedly concealed exculpatory documents) and arguments that
both trial and habeas counsel were ineffective. See Motion for Relief (DN 72) at 16,
20, 21, 24. Even though Cross styles his motion as a request for reconsideration under
Federal Rule 60(b)(6), his arguments do not actually identify flaws in the previous
ruling that this Court could revisit and correct. Rather, the motion asserts new
claims for relief that amount to a second or successive request for habeas relief. See
Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). And Congress, in the Antiterrorism
and Effective Death Penalty Act of 1996, routed all such claims to the Court of
Appeals, rather than the District Court, in the first instance: “Before a second or
successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Given AEDPA’s
procedural requirement, which Cross’s motion would circumvent, the Court lacks
jurisdiction to address the motion’s merits and accordingly transfers this motion to
the Sixth Circuit Court of Appeals. See 28 U.S.C. § 1631.

1

*
In a typical civil case, “Rule 60(b) allows a party to seek relief from a final
judgment, and request reopening of his case, under a limited set of circumstances
including fraud, mistake, and newly discovered evidence.” Gonzalez, 545 U.S. at 528.
But the Federal Rules of Civil Procedure apply to habeas petitions “only to the extent
that [they are] not inconsistent with applicable federal statutory provisions and
rules”—in this case § 2244(b). Id. at 529 (cleaned up) (citing Rule 11 of the Rules
Governing Section 2254 Cases). And the Supreme Court in Gonzalez explained that
consideration of a Rule 60(b) motion that “attacks the federal court’s previous
resolution of a [habeas] claim on the merits” would “impermissibly circumvent the
requirement that a successive habeas petition be precertified by the court of appeals
as falling within an exception to the successive-petition bar.” Id. at 531–32 (citing 28
U.S.C. § 2244(b)(3)) (emphasis in original).
The Gonzalez opinion described those requirements, which circumscribe the
actions this Court may take in response to a Rule 60(b) motion:
The relevant provisions of the AEDPA-amended habeas statutes, 28
U. S. C. §§ 2244(b)(1)–(3), impose three requirements on second or
successive habeas petitions: First, any claim that has already been
adjudicated in a previous petition must be dismissed. § 2244(b)(1).
Second, any claim that has not already been adjudicated must be
dismissed unless it relies on either a new and retroactive rule of
constitutional law or new facts showing a high probability of actual
innocence. § 2244(b)(2). Third, before the district court may accept a
successive petition for filing, the court of appeals must determine that
it presents a claim not previously raised that is sufficient to meet
§ 2244(b)(2)’s new-rule or actual-innocence provisions. § 2244(b)(3).
Id. at 529–30. A Rule 60(b) motion following a habeas denial, therefore, might
circumvent AEDPA’s specific procedural pathways. For a court confronting such a
request, the “threshold inquiry is whether [a petitioner’s] Rule 60(b) motion is a ‘true’
Rule 60(b) motion or simply a ‘second or successive’ habeas application cloaked in
Rule 60(b) garb.” Franklin v. Jenkins, 839 F.3d 465, 473 (6th Cir. 2016) (citing
Gonzalez, 545 U.S. at 531).
That turns on whether Cross’s motion presents an “‘application’ for habeas
relief”—that is, “a filing that contains one or more ‘claims.’” Gonzalez, 545 U.S. at
530 (citing § 2244(b)). A “‘claim’ as used in § 2244(b) is an asserted federal basis for
relief from a state court’s judgment of conviction,” including one that “seeks to add a
new ground for relief” or that “attacks the federal court’s previous resolution of a
claim on the merits.” Id. at 530. So a district court may not consider a Rule 60(b)
motion that “seeks to present ‘new evidence in support of a claim already litigated’”
because such a motion must be treated as a “second or successive” habeas application.
Moreland v. Robinson, 813 F.3d 315, 323 (6th Cir. 2016).
2

A “true” Rule 60(b) motion, on the other hand, attacks “not the substance of
the federal court’s resolution of a claim on the merits, but some defect in the integrity
of the federal habeas proceedings.” Gonzalez, 545 U.S. at 532. In other words, the
Court may consider a petition that “challenges only the District Court’s failure to
reach the merits,” but may not consider one that “assert[s], or reassert[s], claims of
error in the movant’s state conviction.” Id. at 538. The Supreme Court held that the
Rule 60(b) motion at issue in Gonzalez, for example, was not successive because it
challenged the district court’s misapplication of a federal statute of limitations—a
“defect” in the federal habeas proceedings rather than a “basis for relief” from the
state court’s conviction. Id. at 532. The motion properly offered the district court a
way to reconsider its own purported error regarding the initial application, not a
successive application that Congress routed to the appellate court. Id. at 535–36. “A
movant is not making a habeas claim when he seeks only to lift the procedural bars
that prevented adjudication of certain claims on the merits,” the Supreme Court
explained. “But he is making a habeas claim when he seeks to add a new ground for
relief or seeks to present ‘new evidence in support of a claim already litigated.’”
Moreland, 813 F.3d at 322–23 (quoting Gonzalez, 545 U.S. at 531–32).
**
Cross returns to this Court based on “new evidence of actual innocence” that
he contends “has come to light” since the denial of his habeas petition. He now asks
the Court to: “(1) revisit the claim [for habeas] by relying on the new evidence to
reopen proceedings under Rule 60(b); (2) to then separately decide whether actual
innocence excuses the default; and (3) to then decide the merits and grant habeas
relief.” Motion for Relief at 2.
Cross first raises evidence he describes as newly discovered. The evidence in
question consists primarily of the emails of Susan Galbreath, a citizen-turnedinvestigator who worked closely with police and a foreign journalist to examine the
circumstances of Jessica Currin’s death.† Cross alleges that the Galbreath emails
demonstrate that she exerted inappropriate influence over the investigation and
steered law enforcement away from other suspects whom Galbreath had an interest
in protecting. The police, Cross maintains, engaged in misconduct, including by
telling Galbreath to conceal from Cross’s defense counsel evidence she had gathered
and shared with law enforcement. Motion for Relief at 21–22. He argues that this
evidence demonstrates that the Commonwealth knew that much of the testimony
presented against Cross at trial was incomplete, untrue, or unreliable—yet the

The Galbreath emails were turned over to the Kentucky Innocence Project in December
2022 (after this Court’s habeas ruling) by a British television production company. That
company discovered the messages in connection to their work with Tom Mangold, the
journalist with whom Galbreath worked closely on the Currin investigation. Motion for Relief
at 11–12.
†

3

prosecution did not disclose that to the defense. Id. This new evidence, according to
Cross, adds up to state misconduct in violation of his due-process rights. Id.
Cross also asks this Court to revisit the question of ineffective assistance by
both trial and habeas counsel. He argues that no court has yet to “fully review” trial
counsel’s ineffectiveness in investigating and cross-examining witnesses. Had trial
counsel conducted a proper investigation, reviewed all the disclosed records, and
prepared a thorough trial plan, he surmises, evidence of the state’s misconduct and
the witnesses’ unreliability would have been evident at trial. Id. at 16–20. The newly
discovered emails, in his eyes, amply justify reassessing the earlier habeas denial
based on ineffectiveness. Id. at 16-20. Cross further argues that his federal habeas
counsel failed to thoroughly review earlier proceedings or available materials to
“presen[t] this Court with ample evidence in support of Mr. Cross’ petition.” Id. at
24–25. According to him, habeas counsel “filed minimal motions,” failed to file a
supplemental petition after the stay lifted, and didn’t present additional evidence
after the state-court proceedings. Id. Diligent counsel, he urges, would have
presented this Court with ample evidence to support his actual-innocence, ineffectiveassistance, and due-process claims. Id.
***
Cross’s new-evidence argument is precisely the type of Rule 60(b) argument
that Gonzalez and other precedents categorize as a habeas application, not a proper
request for reconsideration. A “second or successive” habeas application “seeks to
present ‘new evidence in support of a claim already litigated.’” Moreland, 813 F.3d
at 323. So when Cross states that “the primary reason [he] seeks relief here is a direct
result of the state court’s prior refusals to allow him to develop the evidence he offers
as part of his Rule 60(b) motion,” Motion for Relief at 27, he is really asking for
another chance for this Court to review evidence in support of habeas relief. But
whether that evidence arrived in support of Cross’s initial habeas application or in a
subsequent application is a point of great significance under the scheme enacted by
Congress. The newly discovered evidence Cross presents offers a new basis for
invalidating his prior conviction—reasons that did not arrive in his initial
application. So this Court may not evaluate whether the new evidence supplies
sufficient grounds for relief in the first instance. A second habeas petition, like this
one, must be precertified by the Sixth Circuit under § 2244(b)(3)(A).
Cross asserts that this is a “classic case of an appropriate Rule 60(b) motion in
a habeas case” because “this Court never addressed [Cross’s actual-innocence claim]
on its constitutional merits.” Motion for Relief at 13. This is wrong for three main
reasons. First, to the extent the actual-innocence claim rests on new evidence, it is a
second habeas application that the Court (properly) didn’t address. Second, to the
extent the claim rests on information previously before the Court and rejected on the
basis of procedural default, Cross is mistaken: the 2022 Habeas Opinion rested its
procedural-default ruling on the petitioner’s “fail[ure] to raise the claim on direct
appeal [or] ma[k]e a showing of cause and prejudice for that failure.” Henderson v.
4

Smith, No. 3:16-cv-567, 2019 WL 12631694, at *3 (W.D. Ky. Feb. 11, 2019). That is
a decision “on the merits,” id. (see Habeas Opinion at 12–17), while a dismissal
“’without prejudice’ for failure to exhaust state remedies” is not (see Habeas Opinion
at 10 (discussing stay of 2015 petition)). Id. (quoting Graham v. Costello, 299 F.3d
129, 133 (2d Cir. 2002) (“[W]hen a prior petition is denied because the claim raised is
procedurally defaulted … the denial is ‘on the merits,’ rendering a subsequently filed
petition ‘second or successive.’”). Third, the Court’s prior opinion offered an
alternative and sufficient basis for rejecting Cross’s position that is indisputably “on
the merits.” The opinion explained at length that Kentucky state courts had ruled
reasonably on the merits of each of Cross’s claims. Habeas Opinion at 17–21.
Because this argument attacks the federal court’s prior decision on the merits, the
motion amounts to a successive habeas application rather than a true request for
reconsideration. See Gonzalez, 545 U.S. at 531–32.
The Court is equally powerless to consider Cross’s claims for ineffective
assistance of counsel. Cross argues that no court has adequately reviewed his
lawyer’s failure to investigate key issues ahead of and during trial. Motion for Relief
at 16–20. But this is either a new claim for relief (to the extent it rests on newly
discovered evidence) or a claim that has already been adjudicated on the merits (to
the extent it calls into question this Court’s prior opinion denying the request for
relief based on ineffective assistance). The 2022 habeas opinion expressly rejected
relief on this basis given the state courts’ reasonable adjudication of these arguments.
Habeas Opinion at 20. And Cross’s argument based on ineffective assistance of
habeas counsel, Motion for Relief at 24–25, fails because AEDPA “expressly bars
relief grounded on claims of incompetent or ineffective counsel in federal postconviction proceedings.” Post v. Bradshaw, 422 F.3d 419, 423 (6th Cir. 2005). “[A]n
attack based on … habeas counsel’s omissions … ordinarily does not go to the
integrity of the proceedings, but in effect asks for a second chance to have the merits
determined favorably.” Gonzalez, 545 U.S. at 532 n.5.
The Rule 60(b) motion at issue in Gonzalez, by contrast, properly asked the
trial court to reconsider its own purported error. This request was not a successive
application because it challenged the misapplication of a federal statute of
limitations. Unlike Gonzalez, however, Cross has not argued that this Court
procedurally erred in its previous ruling. Instead he points to new evidence that, in
his view, would have led to a different outcome had the expanded record been before
the Court. Almost by definition, that is a new habeas request, not a reason the Court
previously erred—back before it knew of the information Cross says is dispositive. A
motion that “asks for a second chance to have the merits determined favorably”
amounts to a new “claim” under AEDPA that requires precertification. Gonzalez, 545
U.S. at 531–32.

5

CONCLUSION
The Court construes Cross’s motion for relief from judgment (DN 72) as a
second or successive habeas petition under 28 U.S.C. § 2244(b)(3)(A) and transfers it
to the Sixth Circuit Court of Appeals under 28 U.S.C. § 1631.

March 27, 2024

6