Windsor v. Prince
Filing
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ORDER AND REASONS denying 27 Motion for Relief from Judgment. Signed by Judge Carl Barbier on 5/16/2019. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STEPHEN WINDSOR
CIVIL ACTION
VERSUS
NO: 10-202
HOWARD PRINCE
SECTION: “J”
ORDER & REASONS
Before the Court is a Motion for Relief from Judgment (Rec. Doc. 27) filed by
pro se Petitioner Stephen Windsor (“Petitioner”) and an opposition thereto (Rec. Doc.
30). Having considered the motion and legal memoranda, the record, and the
applicable law, the Court finds that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
In 1997, Petitioner was convicted on state charges of attempted armed robbery
and illegal use of a firearm and was sentenced to twenty years in prison on the
firearm count and received an enhanced sentence of 99 years’ imprisonment on the
attempted armed robbery count after being adjudicated a second offender under
Louisiana’s Habitual Offender Law. (Rec. Doc. 14 at 1-2). Petitioner’s convictions and
99-year sentence were affirmed by the Louisiana Fourth Circuit Court of Appeal, and
the case was remanded for re-sentencing on the firearm count to correct a
discrepancy. (Rec. Doc. 14 at 2-3). On remand, Petitioner was again sentenced to
twenty years on the firearm count. On September 21, 2001, the Louisiana Supreme
Court denied Petitioner’s writ application. (Rec. Doc. 14 at 3). Petitioner did not apply
to the United States Supreme Court for certiorari. (Rec. Doc. 14 at 3).
Between 2002 and 2018, Petitioner litigated at least eight applications for postconviction relief in state court, as well as a second appeal and a motion to vacate his
adjudication and sentencing as a multiple offender. See Response, Windsor v. Tanner
7-15, Civ. Action No. 16-2709 (E.D. La. Nov. 16, 2016). On January 25, 2010,
Petitioner filed a petition for writ of habeas corpus, which this Court dismissed with
prejudice as untimely on December 2, 2010. (Rec. Docs. 1, 17). Petitioner’s appeal of
this Court’s decision to the Fifth Circuit was denied (Rec. Docs. 19, 24). On November
30, 2011, the Supreme Court denied Petitioner’s request for certiorari. (Rec. Docs. 2,
6). The Fifth Circuit also denied applications that Petitioner submitted in 2011 and
2015 for leave to file a second or successive habeas petition. Order, In re: Stephen
Windsor, 11-31054 (5th Cir. Jan. 5, 2012); Order, In Re: Stephen Windsor, 15-30177
(5th Cir. Apr. 23, 2015). Nevertheless, Petitioner filed another habeas petition in
2016, which the Court found successive and dismissed for lack of jurisdiction on June
6, 2018. Report and Recommendation, Windsor v. Tanner, Civ. Action No. 16-2709
(E.D. La. Aug. 23, 2017); Order, Windsor v. Tanner, Civ. Action No. 16-2709 (E.D. La.
June 6, 2018). A third application for leave to file a successive petition is currently
pending before the Fifth Circuit. Application, In re: Stephen Windsor, 19-30281 (5th
Cir. Apr. 12, 2019).
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On November 15, 2017, Petitioner filed the instant Rule 60(b) motion for relief
from judgment. (Rec. Doc. 27). Petitioner seeks to vacate the judgment against him.
(Rec. Doc. 27 at 20). The motion is presently before the Court on the briefs.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 60(b) provides that a court, “[o]n motion and
just terms,” may “relieve a party or its legal representative from a final judgment,
order, or proceeding” under the following enumerated circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies
relief.
As the moving party, Petitioner has the burden to show why the Court should
vacate the Court’s prior judgment. League of United Latin Am. Citizens, Dist. 19 v.
City of Boerne, 659 F. 3d 421, 438 (5th Cir. 2011). However, granting relief under
Rule 60 is “an extraordinary remedy which should be used sparingly.” Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). A motion to vacate a judgment is
“not the proper vehicle for rehashing evidence, legal theories, or arguments that could
have been offered or raised before the entry of judgment.” Id. at 478.
The Supreme Court has made clear that Rule 60(b) in federal habeas cases is
not to be used to attack the district court’s resolution of a claim on the merits; rather
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Rule 60(b) motions may attack a “defect in the integrity of the federal habeas
proceedings.” Gonzalez v. Crosby, 545 U.S. 524, 532–34 (2005). Further, Rule 60
cannot be used to present new claims for relief from the state court conviction unless
the motion relies on either a new rule of constitutional law or newly discovered facts
as required under AEDPA. Id. at 531–532, citing § 2244(b)(2). Motions that purport
to be Rule 60(b) motions, but which “attack[] the federal court’s previous resolution
of a claim on the merits” are to be construed as successive habeas petitions. Id. at 532
(emphasis in original). Federal courts are limited in their ability to consider “second
or successive” habeas applications, and “a claim previously raised must be dismissed.”
In re Bower, 612 F. App’x 748, 752 (5th Cir. 2015); 28 U.S.C. § 2244(b)(1). Rule 60(b)
motions are to be construed as successive habeas petitions insofar as they urge
substantive claims for habeas relief. 28 U.S.C. § 2244(b); Gonzalez v. Crosby, 545 U.S.
425 (2005).
Petitioner asserts that he is challenging this Court’s ruling under Rule
60(b)(6). (Rec. Doc. 27). Petitioner argues throughout the briefs that his claims have
never been addressed on the merits because they were improperly deemed untimely
and repetitive. As such, much of Petitioner’s motion focuses on allegations that the
State failed to disclose various evidence in violation of Brady v. Maryland, 373 U.S.
83 (1963) and its progeny. Petitioner argues that the alleged Brady violations
constitute “manifest injustices” that warrant reopening this matter and permitting
Petitioner to file an amended petition. (Rec. Doc. 27 at 20). The Fifth Circuit has noted
that “a motion that ‘asks the district court for an opportunity to offer facts that (in
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the petitioner’s view) will prove that his conviction was constitutionally infirm,’ raises
‘a paradigmatic habeas claim.’” In re Jasper, 559 F. App'x 366, 371 (5th Cir. 2014)
(quoting Rodwell v. Pepe, 324 F.3d 66, 71–72 (1st Cir. 2003)). Accordingly, the fact
that Petitioner has raised his Brady claims in a Rule 60(b) motion by asserting that
they make his case “extraordinary” does not alter their substantive character. See
Gonzalez, 545 U.S. at 531 (noting that “[u]sing Rule 60(b) to present new claims for
relief from a state court’s judgment of conviction—even claims couched in the
language of a true Rule 60(b) motion—circumvents AEDPA’s requirement[s]….”).
Thus, because Petitioner argues the existence of grounds entitling him to habeas
relief, he is making a habeas claim and his motion must be treated as a successive
habeas petition. Because district courts generally lack jurisdiction to consider second
or successive habeas petitions, Petitioner’s instant motion must be denied for the
reasons previously stated by the Court in dismissing Petitioner’s habeas petition in
2016. See Report and Recommendation, Windsor v. Tanner, Civ. Action No. 16-2709
(E.D. La. Aug. 23, 2017); Order, Windsor v. Tanner, Civ. Action No. 16-2709 (E.D. La.
June 6, 2018).
Even if Petitioner’s motion were not subject to denial for constituting a
successive habeas petition, his remaining arguments are unavailing. Specifically,
Petitioner argues that the Court erred in denying his original habeas petition as
untimely. Relying on Jimenez v. Quarterman, 555 U.S. 113 (2009), Petitioner
contends that the running of the one-year statute of limitations should be
recalculated in light of his second appeal and that he is entitled to equitable tolling.
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(Rec. Doc. 27 at 7-10). This Court disagrees. A change in decisional law effected after
the entry of a judgment does not constitute an exceptional circumstance warranting
relief from that judgment. See Hernandez v. Thaler, 630 F.3d 420, 430 (5th Cir. 2011)
(per curiam) (noting that “[w]ell-settled precedent dictates that [petitioner] may not
use Rule 60(b)(6) to claim the benefit of the Supreme Court’s decision in Jimenez.”).
Moreover, the instant Rule 60(b) motion was not made “within a reasonable time,” as
is required by Federal Rule of Civil Procedure 60(c)(1). See Tamayo v. Stephens, 740
F.3d 986, 991 (5th Cir. 2014) (per curiam) (finding district court did not err in
concluding that Rule 60 motion based on a Supreme Court decision rendered eight
months earlier was untimely).
Additionally, as the Court previously noted in dismissing Petitioner’s second
habeas proceeding, Jimenez is not applicable to the instant case because the rule it
established only applies where “a state court grants a criminal defendant the right to
file an out-of-time direct appeal during state collateral review, but before the
defendant has first sought federal habeas relief….” See Report and Recommendation
18-19, Windsor v. Tanner, Civ. Action No. 16-2709 (E.D. La. Aug. 23, 2017) (quoting
Jimenez, 555 U.S. at 121 (2009)). “[T]he rule excludes the very situation presented
here[,] where a petitioner … already sought and obtained federal habeas review prior
to the resolution of his out-of-time appeal.” Id. at 19. Finally, Petitioner’s arguments
that he is entitled to equitable tolling are untimely and meritless in light of
Petitioner’s failure to rebut the Court’s previous determinations in 2010 that
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Petitioner failed to show diligence or that he faced an external impediment to filing.
Based on the foregoing, Petitioner’s Rule 60(b) motion must be denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Motion for Relief from Judgment
(Rec. Doc. 27) is DENIED.
New Orleans, Louisiana, this 16th day of May, 2019.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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