Patterson v. Cain

Filing 25

ORDER & REASONS: transferring 6 MOTION for Rule 60(B) and 7 MOTION for Relief From Judgment to U.S. Court of Appeals - 5th Circuit to determine if petitioner is allowed to file successive habeas petition in this court. Signed by Judge Carl Barbier on 2/12/16. (NEF: appeals)(sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DAVID PATTERSON

CIVIL ACTION

VERSUS

NO: 12-1397

N. BURL CAIN

SECTION: “J”(2)
ORDER & REASONS

Before the Court is an Application for Rule 60(B) (Rec. Doc.
6) and Motion for Relief from Judgment, Motion to Recall Mandate,
Application for Rule 60(B) (Rec. Doc. 7) filed by Petitioner David
Patterson, an opposition thereto (Rec. Doc. 22) filed by Respondent
N.

Burl

Cain,

and

Patterson’s

reply

(Rec.

Doc.

24).

Having

considered the motions and legal memoranda, the record, and the
applicable

law,

the

Court

finds

that

the

motions

should

be

construed in part as a motion for authorization for the District
Court to consider the claims raised therein and TRANSFERRED to the
United States Court of Appeals for the Fifth Circuit.
FACTS AND PROCEDURAL BACKGROUND
On January 12, 1984, Patterson was convicted of second degree
murder and was sentenced to life imprisonment without the benefit
of parole, probation, or suspension of sentence. The Louisiana
Fifth Circuit Court of Appeal affirmed the conviction and sentence,
State v. Patterson, 464 So. 2d 811, 812-13 (La. App. 5 Cir. 1985),
and the Louisiana Supreme Court denied writs on October 16, 1987,
State ex. rel. Patterson v. Blackburn, 513 So. 2d 815 (La. 1987).

Thereafter,

Patterson

filed

numerous

applications

for

post-

conviction relief in state court; all of which were denied.
In 2007, allegations came to light casting doubt on the
validity

of

certain

state

habeas

procedures

followed

by

the

Louisiana Fifth Circuit Court of Appeal. Specifically, a suicide
note from the former Central Staff Director of the Louisiana Fifth
Circuit Court of Appeal alleged that the court had implemented a
policy to circumvent Louisiana’s constitutional requirement of
three judge panels with respect to pro se prisoner post-conviction
writs by having such filings submitted to one judge or a staff
member who would issue a ruling concerning the writ application
without review by a three judge panel. In response to allegations
that these practices violated the rights of prisoners who brought
claims while the policy was being implemented, the Louisiana Fifth
Circuit Court of Appeal adopted an en banc resolution where it
asked the Louisiana Supreme Court to consider remanding the cases
affected by the policy with direction that they be assigned to
random three judge panels. See State v. Cordero, 993 So. 2d 203,
206 (La. 2008). In its decision, on a writ application filed by a
prisoner affected by the alleged constitutional violations of the
Louisiana Fifth Circuit Court of Appeal, the Louisiana Supreme
Court adopted the court of appeal’s resolution. Id. at 205.
June

16,

2011,

the

Louisiana

Fifth

Circuit

Court

of

On

Appeal

reconsidered all six of Patterson’s pro se post-conviction writs
2

filed between February 8, 1994, and May 21, 2007, the time at which
the defective practices were in effect. The Louisiana Fifth Circuit
determined that it could find no errors and maintained its original
rulings. See State v. Patterson, No. 08-1096 (La. App. 5 Cir. June
16, 2011) (unpublished writ disposition). On April 13, 2012, the
Louisiana Supreme Court denied relief.

State ex rel. Patterson v.

State, 85 So. 3d 1239 (La. 2012).
Patterson has filed numerous applications for federal postconviction relief from 1989 to 2012. 1 Patterson now seeks relief
from the Order of this Court dated June 22, 2012. On May 31, 2012,
Patterson filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. (Rec. Doc. 1.) After determining that the
petition constituted a second or successive petition within the
meaning of 28 U.S.C. § 2244, the Court construed the petition as
a motion for authorization for the Court to consider the second or
successive petition and transferred it to the United States Court
of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 1631 for
a

determination.

The

Fifth

Circuit

subsequently

denied

authorization to file a successive habeas petition. Thereafter, on
May 13, 2015, Patterson filed the instant Application for Rule
60(b) (Rec. Doc. 6) and Motion for Relief from Judgment, Motion to
Recall Mandate, Application for Rule 60(B) (Rec. Doc. 7).

1

For a summary of Patterson’s past federal habeas petitions, see the June 22,
2012, Order. (Rec. Doc. 2.)

3

PARTIES’ ARGUMENTS
Patterson argues that the Court should reopen his postconviction relief pursuant to Rule 60(b)(5), (6). First, Patterson
argues that his motion should be granted pursuant to Rule 60(b)(5)
because his previous petitions for habeas corpus were denied based
on judgments that have since been reversed and vacated. (Rec. Doc.
24, at 2.) Specifically, Patterson argues that the Louisiana Fifth
Circuit

Court

Louisiana’s

of

Appeal

instituted

constitutional

requirement

a

policy
of

to

three

circumvent

judge

panels

adjudicating pro se prisoner post-conviction writs by having such
filings submitted to one judge or a staff member who would issue
a ruling in lieu of the required three judge panel. Patterson
asserts

that

although

he

has

filed

several

federal

habeas

applications, all were denied based upon the defective state court
practices.

Accordingly,

Patterson

argues

that

his

petition

constitutes a challenge to a defect in the process of his prior
petitions rather than a challenge of the merits of those petitions.
Patterson further argues that he should be granted relief
because

the

aforementioned

practices

by

the

Louisiana

Fifth

Circuit Court of Appeal constitute “extraordinary circumstances”
as defined by Rule 60(b)(6). Id. Patterson contends that his
constitutional right of due process was violated by the court’s
defective practices and by the denial of his request to file a
second or successive habeas petition by this Court and the United
4

States Fifth Circuit Court of Appeals. Id. Moreover, Patterson
argues that he is in fact entitled to relief under Rule 60(b)(5)
because his prior judgments were based upon earlier judgments that
have been reversed or vacated. Id. at 8.

Specifically, Patterson

requests that this Court reconsider the Louisiana Fifth Circuit
Court of Appeal’s decision whereby it found no errors in any of
Patterson’s

prior

denials

of

post-conviction

relief.

Lastly,

because Rule 60(b)(5), (6) motions need not be filed within any
particular time period, Patterson contends that his motion is
timely although filed more than two years after the Fifth Circuit’s
denial for authorization to file a successive habeas petition.
Conversely,

Respondent

contends

that

the

instant

motion

should be denied because it is a second or successive habeas
petition. (Rec. Doc. 22 at 10.) Respondent asserts that pursuant
to 28 U.S.C. § 2244(b)(3)(A), a petitioner must obtain an order
from the appropriate court of appeals before filing a second or
successive application in district court. Thus, Respondent argues,
Patterson’s

application

should

be

denied

obtained the requisite authorization.

because

he

has

not

Respondent also asserts

that the instant motion should be denied because it was not filed
within a reasonable time period. Id. at 9.

Respondent maintains

that Patterson filed the instant motion more than twenty-five years
after his first habeas petition was denied on the merits and more
than two years after the Fifth Circuit’s denial for authorization
5

to file a successive habeas petition. Id. Lastly, Respondent
contends that Patterson is not entitled to relief under Rule 60(b)
because the judgments complained of have not been ruled “null and
void” as he claims. Id. at 12. Rather, all six of Patterson’s postconviction writs filed before May 21, 2007, were reviewed by the
Louisiana Fifth Circuit Court of Appeal. The Louisiana Fifth
Circuit Court of Appeal concluded that there were no errors and
maintained the original rulings. Therefore, Respondent contends
that although Patterson complains that he has been affected by
deceptive practices, those practices have been remedied by the
Louisiana Fifth Circuit Court of Appeal’s review.
DISCUSSION
A district court has jurisdiction to consider a Federal Rule
of

Civil

Procedure

Rule

60(b)

motion

in

a

habeas

proceeding

pursuant to § 2254 unless the motion constitutes a successive §
2254 motion. See United States v. Hernandes, 708 F.3d 680, 681
(5th Cir. 2013); see also Gonzalez v. Crosby, 545 U.S. 524, 53136 (2005) (discussing when a district court has jurisdiction to
consider Rule 60(b) motions filed in habeas proceedings); Holley
v. Terrell, No. 10-1787, 2013 WL 2243835, at *2 (E.D. La. May 21,
2013) (explaining district courts’ jurisdictional limitations in
considering Rule 60(b) motions in habeas proceedings).
“A state prisoner is not entitled to use Rule 60(b) as a broad
opening for a second request in the federal court to overturn his
6

conviction.” Balentine v. Thaler, 626 F.3d 842, 846 (5th Cir.
2010). A court will construe a Rule 60(b) motion as a successive
§ 2254 motion if it advances one or more substantive claims.
Hernandes, 708 F.3d at 681. If, however, the Rule 60(b) motion
attacks a procedural defect in the court’s handling of the previous
§ 2254 motion, then the court may consider the motion. Id.
Here, Patterson attempts to seek reconsideration by this
Court of all of its decisions in relation to his several habeas
petitions over the years. (Rec. Doc. 6, at 5). The Court notes,
however,

that

it

considered

Patterson’s

initial

petition

and

denied it on the merits, Patterson v. Butler, No. 89-3100 (E.D.
La. Oct. 12, 1989), before denying or dismissing the subsequent
petitions as abusive or successive. Petitioner cannot claim that
the Court’s determination on the merits of the initial federal
habeas petition was tainted by procedurally defective underlying
state habeas decisions because the alleged improper procedures in
the Louisiana Fifth Circuit Court of Appeal did not commence until
1994. See Cordero, 993 So. 2d at 204. Moreover, the Louisiana Fifth
Circuit reconsidered all of Patterson’s post-convictions writs
filed before May 21, 2007, and maintained the original rulings.
Furthermore, Patterson’s petition seeks relief from the Order
of

this

Court

dated

June

22,

2012.

After

determining

that

Patterson’s previous petition constituted a second or successive
petition

within

the

meaning

of
7

28

U.S.C.

§

2244,

the

Court

construed the petition as a motion for authorization for the Court
to consider the second or successive petition and transferred it
to the United States Court of Appeals for the Fifth Circuit
pursuant to 28 U.S.C. § 1631 for a determination. Again, there is
nothing for this Court to reconsider; the Court lacked jurisdiction
to consider Patterson’s previous petition. To the extent that
Patterson seeks reconsideration of the Fifth Circuit’s denial of
his motion to pursue the successive habeas petition, he must do so
with the Fifth Circuit. “Before a second or successive application
. . . 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). Therefore, Patterson’s instant motion qualifies as
a second or successive application that has not been authorized by
the Fifth Circuit.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Application for Rule
60(B) (Rec. Doc. 6) and Motion for Relief from Judgment, Motion to
Recall

Mandate,

Application

for

Rule

60(B)

(Rec.

Doc.

7)

be

construed in part as a motion for authorization for the District
Court to consider the claims raised therein.
IT IS FURTHER ORDERED that Petitioner’s motions be and hereby
are TRANSFERRED to the United States Court of Appeals for the Fifth
8

Circuit under the authority of 28 U.S.C. § 1631 for determination
of whether Petitioner is authorized under 28 U.S.C. § 2244(b) to
file the instant habeas corpus petition in this District Court.
New Orleans, Louisiana, this 12th day of February, 2016.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

9