Hughes v. Keith

Filing 36

ORDER & REASONS: ORDERED that Petitioner's Motion for Reconsideration (R. Docs. 26, 27) is DENIED. Signed by Judge Carl Barbier on 1/17/17. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RANDY HUGHES

CIVIL ACTION

VERSUS

NO: 12-2841

TIM KEITH, WARDEN

SECTION: “J”

ORDER & REASONS
Before the Court is a Motion for Reconsideration (R. Docs.
26, 27) filed by Petitioner, Randy Hughes (“Petitioner”), and an
opposition thereto (R. Doc. 35) filed by the State of Louisiana on
behalf of Respondent, Warden Tim Keith (“Respondent”). Having
considered the motion and legal memoranda, the record, and the
applicable law, the Court finds that Petitioner’s motion should be
DENIED.
FACTS AND PROCEDURAL BACKGROUND
Petitioner Hughes is a convicted inmate who asks this Court
to “declare all judgments [rendered against him] an absolute
nullity” under Federal Rule of Civil Procedure 60(b) due to “fraud
upon the Court by respondent and in the interest of justice.” (R.
Doc. 26.) On March 17, 2008, Petitioner was charged by bill of
information with one count of attempted distribution of cocaine in
violation of Louisiana Revised Statute § 40:979/967(A) and one
count of possession of cocaine in violation of Louisiana Revised
Statute § 40:967(C). (R. Doc. 15.) Petitioner pleaded guilty to

both counts and was sentenced to fifteen years for the attempted
distribution of cocaine charge and five years on the count of
possession of cocaine, each sentence to run concurrently. Id.
Pursuant to the plea agreement, Petitioner also stipulated to being
a fourth felony offender in exchange for the mandatory minimum
sentence of twenty years at hard labor without benefit of parole,
probation, or suspension of sentence. Id. After exhausting his
state court review, Petitioner filed a

§2254 petition in the

Federal District Court for the Middle District of Louisiana, R.
Doc. 1, which was thereafter transferred to this Court. (R. Doc.
2.)
In his original petition, Petitioner first argued that he was
denied his Sixth Amendment right to effective assistance of counsel
when his trial counsel failed to advise him of his right to enter
an Alford plea, thus making his guilty plea involuntary. (R. Doc.
1 at 2); see North Carolina v. Alford, 400 U.S. 25 (1970). Second,
Petitioner

argued

that

he

was

denied

his

Fifth,

Sixth,

and

Fourteenth Amendment rights when he was not advised of his rights
under

Louisiana

Revised

Statute

§

15:529.1(D).

Id.

Third,

Petitioner argued that he was denied effective assistance of
counsel when his trial counsel failed to move to quash the multiple
bill of information, and when trial counsel “did not challenge
proof of the ten year cleansing period linking his 1987 conviction
in the multiple offender proceeding. . . .” Id. at 3. Finally,
2

Petitioner argued that the trial court violated his Fifth Amendment
right to due process by finding his claims for relief procedurally
barred and non-cognizable. Id.
On December 23, 2013, Magistrate Judge Alma Chasez issued a
Report and Recommendations on Petitioner’s original federal habeas
petition.

(R.

Doc.

15.)

The

magistrate

determined

that

Petitioner’s first three claims, as respectively described above,
were procedurally barred and dismissed with prejudice. Id. at 35.
As to Petitioner’s fourth and final claim, the magistrate noted
that “a federal habeas court does not sit to correct errors made
by state courts in interpreting and applying state law.” Id.
(citing Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998)).
The magistrate determined that this claim was beyond the scope of
the Court’s review and dismissed with prejudice. Id. at 36. On
January 8, 2014, this Court adopted the magistrate judge’s Report
and Recommendations over Petitioner’s objections. (R. Doc. 17.) On
April 25, 2016, the Fifth Circuit affirmed this Court’s judgment.
(R. Doc. 25; R. Doc. 25-1.)
On June 27, 2016, Petitioner filed the present Rule 60(b)
Motion for Reconsideration. (R. Docs. 26, 27.) Petitioner’s motion
presents
Petitioner

several
argues

arguments,

some

that

State

“the

new
of

and

some

Louisiana

old.
has

First,
obtained

judgment by reliance of State v. Cotton, 45 So.3d 1030 (La.
10/15/10) retroactively to [his] conviction and sentence. . . .”
3

(R. Doc. 26 at 2.) Petitioner argues that all state court judgments
are absolutely null as a result thereof. Id. Second, Petitioner
argues that Louisiana Code of Criminal Procedure Article 881.2
prohibited him from seeking review of his sentence in conformity
with the plea bargain which was set forth in the record at the
time of the plea. Id. Third, Petitioner argues that his postconviction counsel was ineffective by not challenging the multiple
bill adjudication and sentence, because he was not advised of the
minimum and maximum sentences to which he may be subject, was not
advised

of

his

right

to

a

trial

by

judge

or

jury,

was

not

“Boykinized,” and was not advised of his right to confront and
cross examine his accusers. Id. at 3. Petitioner further argues
that he was “subjected to ineffective counsel during the multiple
bill adjudication hearing and sentence due to [counsel’s] failure
to

investigate

the

constitutionality

of

the

underlying

prior

felonies being used for multiple bill purposes under Louisiana
Revised Statute 15:529.1 and available defenses and file a Motion
to Quash the Multiple Bill of Information prior to advisement to
plead guilty resulting in the increase of sentence.” (R. Doc. 261 at 4.) Fourth, Petitioner argues that he had a protected due
process and equal protection right to attack his conviction and
sentence. (R. Doc. 27.) Finally, Petitioner argues that “the trial
court lacked jurisdiction to entertain [his] Motion to Retract

4

(Withdraw) Guilty Plea filed on February 28, 2010 . . . since [his]
right to appeal had yet to lapse.” Id.
Respondent filed an opposition to Petitioner’s motion. (R.
Doc. 35.) Respondent argues that Petitioner’s motion raises new
claims and arguments that were not raised previously. As a result,
Respondent

argues

unexhausted

and

Respondent

argues

Petitioner’s

procedurally
that

motion

should

defaulted.

Id.

Petitioner

is

be

denied

as

at

5.

Further,

attempting

to

file

an

unauthorized second or successive petition. Id. Respondent also
argues that Petitioner’s motion is untimely. However, even if the
motion was filed timely, Respondent argues that Petitioner has not
demonstrated that fraud or other misconduct occurred and has not
demonstrated that any such misconduct prevented him from fully and
fairly presenting his case. Id. at 8. Finally, Respondent argues
that

Petitioner

has

not

demonstrated

any

extraordinary

circumstances that would entitle him to relief under Rule 60(b)(6).
DISCUSSION
Federal Rule of Civil Procedure 60(b)-(c) provides:
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may
relieve a party or its legal representative from a final
judgment, order, or proceeding for the following
reasons:
(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);
5

(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.
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be
made within a reasonable time--and for reasons
(1), (2), and (3) no more than a year after
the entry of the judgment or order or the date
of the proceeding.
Rule 60(b)(3) and Rule 60(b)(6) appear to be the only sections
relevant to Petitioner’s motion. See (R. Doc. 26.) Rule 60(b)(3)
carries a one-year limitation period. Fed. R. Civ. P. 60(b)(c)(1).
Rule 60(b)(6) motions must be filed within a reasonable period of
time. Id. This Court entered judgment in favor of Respondent and
against Petitioner on January 8, 2014. (R. Doc. 18.) Petitioner
filed the present Rule 60(b) motion on June 27, 2016. See (R. Docs.
26, 27.) Almost two and a half years passed between judgment and
the present motion, and Petitioner’s appeal to the Fifth Circuit
did not toll that period. See Worldwide Detective Agency, Inc. v.
Cannon Cochran Mgmt. Servs., Inc., 622 F. App’x 383, 386 (5th Cir.
2015). Accordingly, Petitioner’s motion is untimely and may be
denied on this ground alone. See Morman v. 22nd JDC St. Tammany,
LA, No. 12-339, 2015 WL 8769965, at *2 (E.D. La. Dec. 15, 2015)

6

(holding that the plaintiff’s three-and-a-half year delay did not
meet the “reasonable time” requirement of Rule 60).
Nevertheless, even if Petitioner had sought timely relief,
the Court is required to determine whether his motion should be
construed as a “true” 60(b) motion or rather an unauthorized
successive habeas petition. The first step in determining whether
a 60(b) motion is a successive habeas petition is to determine
whether Petitioner’s motion contains “claims” as defined by 28
U.S.C. § 2254(b). Gonzalez v. Crosby, 545 U.S. 525, 530 (2005). “A
motion brings a ‘claim’ if it attacks the federal court’s previous
resolution of a claim on the merits, since alleging that the court
erred

in

denying habeas relief

on

the

merits

is

effectively

indistinguishable from alleging that the movant is, under the
substantive

provisions

of

the

statutes,

entitled

to habeas relief.” Id. at 532. District courts have jurisdiction
to consider Rule 60(b) motions in habeas proceedings only if the
motion

“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.” Id. Thus, where a
Rule 60(b) motion challenges the district court’s denial of habeas
relief on the merits, it must be considered a second or successive
petition. Id. However, “challenges to dismissal of prior habeas
petitions on grounds of procedural default, time bar or failure to
exhaust are not challenges to dismissal on the merits, should not
7

be construed as improper successive habeas petitions, and are
properly before the district court.” Holley v. Terrel, No. 101787, 2013 WL 2243835, at *2 (E.D. La. May 21, 2013).
This Court’s Report and Recommendations dismissed several
claims as procedurally barred. Specifically, because Petitioner
failed to comply with state procedural rules and the state’s
application of said procedural rules were adequate and independent
of federal law, the Court dismissed the following claims with
prejudice: (1) Petitioner was denied his Sixth Amendment right to
effective assistance of counsel when counsel failed to advise him
of his right to enter an Alford plea, thus making his guilty plea
involuntary; (2) Petitioner was denied his Fifth, Sixth, and
Fourteenth Amendment rights when he was not advised his rights
under Louisiana Revised Statute 15:529.1(D); (3) Petitioner was
denied effective assistance of counsel when his trial counsel
failed to move to quash the multiple bill of information, which
resulted in a double enhanced penalty, and when trial counsel “did
not challenge proof of the ten year cleansing period linking his
1987 conviction in the multiple offender proceeding. . . .” See
(R. Doc. 15 at 20.) Petitioner now argues that his counsel was
ineffective on post-conviction relief because counsel did not
challenge that multiple bill and sentence, did not file a motion
to correct illegal sentence, and did not file a writ of habeas
corpus. (R. Doc. 26 at 2.) Because this claim was raised in
8

Petitioner’s original petition and not addressed on the merits, it
is ripe for a “true” Rule 60(b) determination. See Balentine v.
Thaler, 626 F.3d 842, 846 (5th Cir. 2010).
Rule 60(b)(3) provides relief for “fraud

(whether previously

called intrinsic or extrinsic), misrepresentation, or misconduct
by an opposing party.” Fed. R. Civ. Pro. 60(b)(3). Under Rule
60(b)(3) Petitioner must demonstrate, by clear and convincing
evidence, “(1) that the adverse party engaged in fraud or other
misconduct, and (2) that this misconduct prevented [him] from fully
and fairly presenting his case.” Williams v. Thaler, 602 F.3d 291,
311 (5th Cir. 2010) (quoting Hesling v. CSX Transp., Inc., 396
F.3d 632, 641 (5th Cir. 2005)). The Fifth Circuit has held that
“Rule

60(b)(3) ‘is

obtained,

aimed

at

at

those

not

judgments

which

which

were

are

unfairly
factually

incorrect.’” Id. (quoting Rozier v. Ford Motor Co., 573 F.2d 1332,
1339 (5th Cir. 1978)). Petitioner has not produced evidence of
fraud or misconduct, nor has he demonstrated that such misconduct
prevented

him

from

fully

and

fairly

presenting

his

case.

Accordingly, this claim must be denied.
As

to

Rule

60(b)(6),

the

Fifth

Circuit

has

noted

that

“‘[r]elief under this section is granted only if extraordinary
circumstances are present.’” Williams, 602 F.3d at 312 (quoting
Am. Totalisator Co. v. Fair Grounds Corp., 3 F.3d 810, 815 (5th
Cir.

1993)

(internal

quotation
9

marks

omitted)

(alteration

in

original)). Further, ineffective assistance of counsel does not
satisfy the “extraordinary circumstances” bar under Rule 60(b)(6).
Id. (citing Wells v. United States, No. 3-1152, 2007 WL 2192487,
at *4 (N.D. Tex. July 27, 2007). Likewise, Petitioner has not
demonstrated any extraordinary circumstances that would entitle
him to relief pursuant to Rule 60(b)(6), and this claim must be
denied.
Petitioner also appears to argue that he did not knowingly
and voluntarily waive his right to appeal his guilty plea and
sentence, which he argues was in violation of his due process and
Sixth Amendment rights. (R. Doc. 26-1 at 3-4.) It appears that
this claim is the same claim that Petitioner raised in his initial
petition as to his counsel not advising him of the right to enter
an Alford plea. (R. Doc. 1-2 at 3.) Again, this claim was not
previously addressed on the merits and is ripe for a Rule 60(b)
determination. However, also like his previous claim, Petitioner
has not demonstrated that fraud or other misconduct occurred. Thus,
Petitioner’s argument under Rule 60(b)(3) must fail. Further,
Petitioner has not demonstrated any extraordinary circumstances
that would entitle him to relief under Rule 60(b)(6), and this
argument too must fail.
Finally, Petitioner’s Rule 60(b) motion raises several new
claims

that

Petitioner’s

were
60(b)

not

raised

motion

in

argues
10

his

initial

that

petition.

Louisiana

state

First,
courts

obtained judgments by relying retroactively on State v. Cotton,
2009-2397 (La. 10/15/10); 45 So. 3d 1030. (R. Doc. 26 at 2)
(citations omitted). Second, Petitioner asserts that “[Louisiana
Code of Criminal Procedure Article 881.2] prohibited petitioner
Hughes from seeking review of his sentence in conformity with the
plea bargain which was set for the [sic] in the record at the time
of the plea.” Id. (citations omitted). Third, Petitioner argues
that the “trial court was without jurisdiction to adjudicate and
sentence petitioner Hughes as a Fourth Felony Offender under
[Louisiana Revised State 15:529.1]. . . .” (R. Doc. 26-1 at 12.)
Fourth, Petitioner raises several new ineffective assistance of
counsel claims. Petitioner argues that he was not advised of the
minimum and maximum penalties he faced, that he was not advised of
his right to a trial by judge or jury, that he was not “Boykinized,”
and that he was not advised of his right to confront and cross
examine his accusers. (R. Doc. 26 at 3.) Fifth, Petitioner argues
that he had a protected due process and equal protection right to
attack

his

conviction

and

sentence.

(R.

Doc.

27.)

Finally,

Petitioner argues that “the trial court lacked jurisdiction to
entertain [his] Motion to Retract (Withdraw) Guilty Plea filed on
February 28, 2010 . . . since [his] right to appeal had yet to
lapse.” Id. These claims must be dismissed as they constitute
successive habeas applications barred by the Antiterrorism and
Effective

Death

Penalty

Act. See 28
11

U.S.C.

§

2244(b)(2);

Balentine, 626 F.3d at 848; Gonzalez, 545 U.S. at 524 (holding
that a Rule 60(b) motion is successive petition if the motion
raises a new ground for relief not previously raised). Further, to
the

extent

Petitioner

argues

that

Louisiana

state

courts

inappropriately relied on State v. Cotton, “[a] federal habeas
court does not sit to correct errors made by state courts in
interpreting and applying the law.” Narvaiz, 134 F.3d at 695.

CONCLUSION
Accordingly,
IT

IS

HEREBY

ORDERED

that

Petitioner’s

Motion

Reconsideration (R. Docs. 26, 27) is DENIED.
New Orleans, Louisiana this 17th day of January, 2017.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

12

for