Taylor v. Cain et al

Filing 46

ORDER AND REASONS dismissing 45 Marion Taylor's Rule 60(b)(6) motion for Relief from Judgment for lack of jurisdiction. Signed by Judge Martin L.C. Feldman on 04/09/2020. (ko)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARION TAYLOR

*

CIVIL ACTION

versus

*

NO. 13-0462

N. BURL CAIN, WARDEN

*

SECTION "F"

ORDER AND REASONS
Before the Court is Marion Taylor’s Rule 60(b)(6) motion for
relief from judgment.

For the reasons that follow, the motion is

DISMISSED for lack of jurisdiction.

Before pursuing the relief

sought, the movant must first obtain pre-filing authorization from
the U.S. Court of Appeals for the Fifth Circuit.
Background
Marion

Taylor,

Louisiana

prisoner

#558611,

is

serving

a

lifetime prison sentence at the Louisiana State Penitentiary in
Angola.

In 2013, Mr. Taylor filed a habeas petition under 28

U.S.C. § 2254 to challenge the constitutionality of his statecourt conviction for second-degree murder.

On July 23, 2015, this

Court adopted the magistrate judge’s report and recommendation
that the habeas petition be dismissed with prejudice.
was entered accordingly.

Judgment

Both this Court and the U.S. Fifth

Circuit Court of Appeals denied Taylor’s requests for certificates
1

of appealability and to proceed in forma pauperis on appeal.
Invoking Rule 60(b)(3), Taylor then sought relief from the Court’s
judgment; the Court denied the motion and again denied his requests
for a certificate of appealability and to proceed in forma pauperis
on appeal.

Taylor moved the U.S. Fifth Circuit Court of Appeals

for a certificate of appealability.

On October 3, 2018, U.S. Fifth

Circuit Judge Costa denied Taylor’s requests for a certificate of
appealability and to proceed in forma pauperis on appeal, finding
that Taylor’s Rule 60(b)(3) motion was a second or successive
habeas petition over which this Court lacked jurisdiction.

The

U.S. Supreme Court denied Taylor’s petition for certiorari.

Now,

for a second time, Taylor moves for relief under Rule 60, this
time invoking subsection (b)(6).
I.
When a state prisoner seeks relief under Rule 60(b) of the
Federal Rules of Civil Procedure, the district court must be
mindful of the interplay between Rule 60(b) and the statutes
applicable state habeas petitions. The Court must make a threshold
determination of whether the motion amounts to a successive § 2254
petition subject to gate-keeping provisions administered solely by
the Court of Appeals.

See United States v. Jiminez-Garcia, 951

F.3d 704, 705 (5th Cir. 2020)(remanding case to district court to
determine whether Rule 60 motion filed by federal prisoner amounted
2

to an unauthorized successive § 2255 motion); Crustinger v. Davis,
929 F.3d 259, 266 (5th Cir. 2019)(vacating district court’s order
transferring
successive

petitioner’s
petition,

motion

to

determining

the appellate
that

the

court as

motion

was

a

not

successive within the meaning of 28 U.S.C. § 2244(b)(1), and
remanding to the district court to consider the Rule 60(b)(6)
motion in the first instance).

If, in its policing function, the

district court determines that the prisoner’s motion is genuinely
a successive habeas petition disguised as a Rule 60(b) motion,
then the Court must dismiss the petition for lack of jurisdiction
or transfer it to the Fifth Circuit Court of Appeals, which has
the singular power to authorize successive habeas petitions.
Rule 60(b) of the Federal Rules of Civil Procedure allows a
party

to

seek

circumstances

relief
such

as

from
fraud,

a

final

judgment

mistake,

and

under

newly

discovered

evidence, or “any other reason that justifies relief.”
Civ. P. 60(b).

limited

Fed. R.

Rule 60(b) applies in § 2254 proceedings but only

“to the extent [it is] not inconsistent with” applicable federal
law.
Cases.

See Rule 11 of the Federal Rules Governing 28 U.S.C. § 2254
Rule 60(b) may not be used to circumvent the Antiterrorism

and Effective Death Penalty Act of 1996.

Title 28, United States

Code, § 2254, as amended by the AEDPA, governs federal habeas
review for a prisoner in state custody.
3

The AEDPA-amended habeas

statutes, § 2244(b)(1)-(3), impose certain requirements on state
prisoner’s

ability

to

seek

successive

federal

habeas

review.

Gonzalez v. Crosby, 545 U.S. 524, 529-30 (2005); In re Edwards,
865 F.3d 197, 203 (5th Cir. 2017).

“Because of the comparative

leniency of Rule 60(b), prisoners sometimes attempt to file what
are in fact second-or-successive habeas petitions under the guise
of Rule 60(b) motions.”
omitted).

In re Edwards, 865 F.3d at 203 (citations

Thus, when a state prisoner requests Rule 60(b) relief,

district courts must scrutinize the motion to determine whether it
properly seeks Rule 60(b) relief or, instead, whether it is a sham
Rule 60(b) motion subject to the AEDPA’s preauthorization rules
governing petitions seeking relief under 28 U.S.C. § 2254.
Before a successive habeas petition may be pursued in the
district court, the Court of Appeals must first certify that it
meets

the

requirements

of

§

2244(b)(2).

See

§

2244(b)(3)(A)

(“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”) and § 2244(b)(3)(C)
(“The court of appeals may authorize the filing of a second or
successive application only if it determines that the application
makes a prima facie showing that the application satisfies the
requirements of this subsection.”). The district court must ensure
4

that

state

prisoners

do

not

circumvent

these

statutory

requirements by filing Rule 60(b) motions that are functionally
successive habeas petitions.
the

district

successive

court

habeas

of

In other words, the AEDPA “divests

jurisdiction

petitions;

thus,

to

consider

once

the

unauthorized

district

court

conclude[s that a petitioner’s Rule 60] motion [i]s a successive
2254 habeas petition, it [must] dismiss[] the motion or transfer[]
it to the [Court of Appeals] for authorization.”
782

Fed.Appx.

297,

298

n.1

(5th

Cir.

Gamboa v. Davis,

2019)(unpublished,

per

curiam)(citations omitted).
To determine whether a prisoner’s Rule 60(b) motion is, in
substance,

a

second

or successive

habeas

petition, the

Court

consults Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)(“[A]s a
textual

matter,

§

2244(b)

applies

only

where

the

court

acts

pursuant to a prisoner’s ‘application for a writ of habeas corpus,’
and courts therefore must decide whether a Rule 60(b) motion filed
by a habeas petitioner is a ‘habeas corpus application’ as the
statute uses that term.”).
guidelines

for

determining

There, the Supreme Court articulated
the

circumstances

under

which

a

district court may properly consider a Rule 60(b) motion in a §
2254 habeas proceeding.

If the so-called Rule 60(b) motion either

“(1) presents a new habeas claim (an ‘asserted basis for relief
from a state court’s judgment of conviction’), or (2) ‘attacks the
5

federal court’s previous resolution of a claim on the merits,’”
then the motion “should be treated as a second-or-successive habeas
petition and subjected to AEDPA’s limitation on such petitions.”
In re Edwards, 865 F.3d at 203-04 (citing Gonzalez, 545 U.S. at
531-32).

By contrast, a district court may consider a Rule 60(b)

motion in a § 2254 proceeding if one of two circumstances is
present: if the motion attacks a “defect in the integrity of the
federal habeas proceedings [such as] fraud on the federal habeas
court”;

or

if

the

motion

attacks

a

procedural

ruling

“which

precluded a merits determination [such as] a denial [for] failure
to exhaust, procedural default, or statute-of-limitations bar.”
See Gilkers v. Vannoy, 904 F.3d 336, 344 (5th Cir. 2018)(citing
Gonzalez, 545 U.S. at 532 and n.2, 3).

A § 2254 applicant need

not satisfy § 2244(b)’s authorization requirement for the district
court to consider a genuine Rule 60(b) motion.

Id. at 343.

II.
A.
Mr. Taylor’s Rule 60(b) motion is a disguised successive
habeas petition; the AEDPA’s gate-keeping provisions divest the
Court of jurisdiction to entertain this successive motion unless
and until a panel of the Fifth Circuit authorizes its filing.
Presented with a post-judgment motion like Taylor’s, which
follows the denial of a § 2254 habeas application, the Court must
6

determine whether the movant has accurately characterized the
motion or whether he, in fact, seeks habeas relief.

A Rule 60(b)

motion that raises new substantive claims or attacks the district
court’s

merits-based

resolution

of

successive § 2254 habeas application.

prior

§

2254

claims

is

a

Where, as here, a Rule 60(b)

motion is truly a successive § 2254 application, the Court lacks
jurisdiction to consider it absent authorization from the Court of
Appeals.
Rather than confining his request for relief to a non-merits
aspect

of

the

original federal

habeas

proceeding, Mr.

Taylor

attempts to re-urge his argument that aspects of the state trial
violated his constitutional right to confront witnesses against
him.

Taylor first invokes Gonzalez v. Crosby, 545 U.S. 542, 532

(2005) to suggest that he pursues a true Rule 60 motion rather
than an unauthorized or successive habeas petition.

But his

characterization does not control; he merely pays lip service to
the standard the Court must apply to determine whether his socalled Rule 60 motion is functionally equivalent to a successive
habeas

petition.

The

Court

must

look

beyond

Taylor’s

characterization of his motion to determine whether it is an
unauthorized

successive

habeas

petition.

Taylor

purports

to

challenge a “defect in the integrity” of his habeas proceeding,
but he fails to identify any defect.
7

He also summarizes the law

on Article III standing and appears to take issue with what he
sees as the Court’s refusal to exercise its federal question
jurisdiction

in

adopting
Taylor

Recommendation.

the

magistrate

merely

judge’s

regurgitates

apparently applicable to the relief he seeks.

Report

standards

&
not

Considering the

only substantive portion of the so-called Rule 60 motion reveals
its true objective: Taylor alludes to a “factual determination” by
the state court and a defendant’s constitutional right to effective
cross-examination.

It is this confrontation clause right that

Taylor has invoked at least twice before in this Court: in his
initial habeas petition and, again, in a previous motion he styled
as

one

seeking

Rule

60(b)

relief,

which

the

Fifth

Circuit

determined was an unauthorized successive habeas petition.

This

latest filing, too, is a quintessential unauthorized successive
habeas petition.

To be sure, “[a] petition is successive when it

‘raises a claim ... that was or could have been raised in an
earlier

petition

....”

See

In re

Edwards,

(citations omitted); see also § 2244(b)(1).

865

F.3d at

203

Absent authorization

from the Fifth Circuit, this Court lacks jurisdiction to consider
confrontation

clause

challenges

previously

considered

and

rejected.
Mr. Taylor does not challenge the integrity of the federal
habeas corpus proceeding; he challenges its outcome. This requires
8

pre-filing authorization from the Fifth Circuit.
IS

ORDERED:

that

Taylor’s

motion

is

Accordingly, IT

DISMISSED

for

lack

of

Taylor

to

merits

of

jurisdiction.
B.
Because
proceed,

the

the

Fifth

Court

is

Circuit
precluded

has

not

from

authorized

reaching

the

Taylor’s successive habeas petition; thus, the Court finds that an
order denying a certificate of appealability is not required by 28
U.S.C. § 2253.

Cf. United States v. Fulton, 780 F.3d 683, 688

(5th Cir. 2018)(citation omitted)(“The transfer of an unauthorized
§

2255

petition

is

not

a

final

order

under

28

U.S.C.

§

2253(c)(1)(B) [and, thus, an] appeal of such an order does not
require a COA.”).
case

literature

However, there is some inconsistency in the

on

whether a

certificate

of appealability

is

necessary when a district court determines that a prisoner’s postjudgment

motion

authorization.

is

a

successive

petition

requiring

pre-

Compare id. with Gonzales v. Davis, 788 Fed.Appx.

250 (5th Cir. 2019)(declining to consider whether Resendiz v.
Quarterman, 454 F.3d 456, 458 (5th Cir. 2006) -- which held that
a district court’s dismissal of a motion on the ground that it is
an unauthorized successive collateral attack constitutes a final
order within the scope of 28 U.S.C. § 2253(c), and, therefore, a
certificate of appealability is required -- was tacitly overruled
9

by the Supreme Court in Harbison v. Bell, 556 U.S. 180 (2009)),
petition for certiorari docketed, 2/19/20; see also, e.g., United
States v. Akers, --- Fed.Appx. ---, 2020 WL 1650652, at *2 (10th
Cir. 2020)(dismissal of petition for lack of jurisdiction is a
procedural ruling and, to appeal it, the petitioner must first
obtain a COA); United States v. McRae, 793 F.3d 392, 398 (4th Cir.
2015)(acknowledging the incongruity of granting a COA only to hold
that the district court lacked jurisdiction, and holding that the
COA requirement in § 2253(c) allows the Circuit Court to review,
without first issuing a COA, an order dismissing a Rule 60(b)
motion as an improper successive habeas petition).

Accordingly,

in an abundance of caution, IT IS ORDERED: that a certificate of
appealability

shall

not

be issued

for

the following

reasons.

Taylor has failed to make a substantial showing of the denial of
a constitutional right.

The petitioner has failed to show: that

reasonable jurists could debate whether the motion should have
been resolved or characterized in a different manner; or that the
issues presented were adequate to deserve encouragement to proceed
further;

or,

insofar

as the

characterization

issue is

merely

procedural, that jurists of reason would find it debatable whether
the Court was correct in its procedural ruling.

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***
For the foregoing reasons, IT IS ORDERED: that Taylor’s motion
is

DISMISSED

for

lack

of

jurisdiction

and

no

certificate

of

appealability shall be issued.
New Orleans, Louisiana, April __, 2020
9

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

11