King v. Cain, et al
RULING: IT IS ORDERED that the petitioner's 21 Application for Rule 60(b)(60 Relief, be construed in part as a motion for authorization for the district court to consider the successive claims raised herein. IT IS FURTHER ORDERED that the Mot ion be and hereby transferred to the United States Court of Appeals for the Fifth Circuit under the authority of 28 U.S.C. 1631 for that court to determine whether petitioner is authorized under 28 U. S. C. 2244 (b) to proceed with the instant habeas corpus Application in this district court. See, In re: Tony Epps, 127 F.3d 364 (5th Cir. 1997). Signed by Judge Shelly D. Dick on 9/27/2017. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
FREDDIE KING, JR. (#294107)
DARRELL VANNOY, WARDEN
This matter comes before the Court on Petitioner's Application for Relief1 pursuant
to Rule 60(b)(6) of the Federal Rules of Civil Procedure.
In this Application, Petitioner
seeks to have his habeas corpus case “re-opened” in light of a recent decision of the
United States Court of Appeals for the Fifth Circuit, Coleman v. Goodwin, 2 which
concluded that the rule set forth in Martinez v. Ryan, 3 and extended in Trevino v.
Thayler,4 is applicable in the State of Louisiana.
In December 1990, pro se Petitioner, Freddie King, Jr., an inmate confined at the
Louisiana State Penitentiary (“LSP”), Angola, Louisiana, was convicted of four counts of
first degree murder in the 19th Judicial District Court for the Parish of East Baton Rouge,
State of Louisiana.
After pursuing both direct appeal and post-conviction proceedings
in the state courts, he commenced his initial federal habeas corpus proceeding in this
Court in May of 1997, asserting claims of ineffective assistance of counsel, insufficiency
of the evidence, and denial of due process through the alleged use of perjured testimony.
Rec. Doc. 21.
833 F.3d 537 (5th Cir. 2016).
566 U.S. 1 (2012).
U.S. 133 S.Ct. 1911 (2013).
Pursuant to the Magistrate Judge’s Report dated November 17, 1997, 5 the Court
substantively considered Petitioner’s claims and recommended that they be dismissed
upon a finding that the claims were without merit.
Petitioner filed an Objection6 to that
Report and Recommendation and, after consideration thereof, the Court accepted the
findings and conclusions in the referenced Report and dismissed Petitioner’s application
for habeas corpus relief on June 8, 1998, with prejudice.7 Whereas Petitioner, thereafter,
sought to appeal that determination by filing a request for a Certificate of Appealability
before the Fifth Circuit Court, Petitioner’s request was denied and his appeal dismissed
pursuant to Mandate dated February 24, 1999.8
Petitioner also sought further review by
filing an application for a writ of certiorari in the United States Supreme Court, but that
Court denied Petitioner’s application on October 4, 1999.9 Now, more than fifteen years
after the filing of the last pleading herein, Petitioner has filed the instant Application for
Rule 60(b)(6) relief, contending that intervening decisional law presents an extraordinary
circumstance that supports a conclusion that his claims of ineffective assistance of
counsel should be re-visited.
The basis for Petitioner’s assertion that his case should be re-opened commences
with the 2012 decision of the United States Supreme Court in Martinez v. Ryan.10
Martinez, the Supreme Court concluded that, where state law requires that a petitioner’s
claims of ineffective assistance of trial counsel be raised in an initial post-conviction relief
Rec. Doc. 11.
Rec. Doc. 12.
See Rec. Docs. 13 and 14.
See Rec. Doc. 19.
See Rec. Doc. 20.
application (instead of on direct appeal), a procedural default of an ineffectiveness claim
will not bar federal habeas relief if there was no counsel or counsel was ineffective in the
initial post-conviction proceeding.
In Trevino v. Thaler, 11 the Court subsequently
extended this rule to jurisdictions – Texas in that case – where state procedural law
effectively compels petitioners to assert their ineffective assistance claims in postconviction relief proceedings instead of on direct appeal.
Finally, in Coleman v.
Goodwin,12– the 2016 decision upon which Petitioner directly relies herein – the Fifth
Circuit concluded that the Martinez/Trevino rule applies to post-conviction proceedings
brought in Louisiana.
In reliance upon Coleman, Petitioner asserts that, because he was
effectively required to assert his ineffective assistance of counsel claims in his initial postconviction relief proceedings, and because he did not have counsel during those
proceedings, he should be allowed to re-litigate those claims at this time.
Initially, the Court must determine whether, in submitting this Application pursuant
to Rule 60(b)(6), Petitioner has filed a pleading that effectively seeks successive habeas
corpus relief and that, therefore, requires prior authorization from the United States Court
of Appeals for the Fifth Circuit in accordance with 28 U.S.C. § 2244(b).
In Gonzalez v.
Crosby,13 the United States Supreme Court addressed the question whether and when
a motion for relief from judgment pursuant to Rule 60 must be considered to be a
successive application for habeas corpus relief.
The Gonzalez Court concluded that a
claim presented in a Rule 60 motion that re-visits a prior substantive denial of habeas
545 U.S. 524 (2005).
relief, or that asserts a new substantive basis for relief from a conviction, is effectively a
successive habeas corpus application. 14
As explained by the Fifth Circuit in In re
Hartzog, “[a] 60(b) motion is considered a successive collateral attack if it challenges an
earlier denial of relief on the merits or raises new claims.”
In contrast, “[a] Rule 60(b)
motion is not successive if it challenges ‘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,’” as where it challenges a decision on a procedural issue, e.g., timeliness
or prematurity, that prevented a previous federal habeas court from reviewing the merits
of the petitioner’s claims.16
Applying the foregoing standard, the Court concludes that Petitioner’s Application
for Rule 60(b)(6) relief is, in fact, a successive habeas corpus application because it seeks
to re-visit his substantive claims for relief from his criminal convictions based upon alleged
ineffective assistance of counsel.
These claims were substantively addressed and
resolved by the Federal District Court in connection with Petitioner’s initial habeas corpus
In doing so, the District Court did not reject Petitioner’s claims based upon
procedural default and, as a result, the Martinez/Trevino/Coleman rule is not applicable
in this instance.17
Id. at 532.
444 Fed. Appx. 63, 65 (5th Cir. 2011).
Id. at 65, relying upon Gonzalez v. Crosby, supra. See also United States v. Hernandes, 708 F.3d 680,
681 (5th Cir. 2013) (concluding that, “where a Rule 60(b) motion advances one or more substantive claims,
as opposed to a merely procedural claim, the motion should be construed as a successive § 2255 motion”).
See Caston v. Warden, Louisiana State Penitentiary, 2016 WL 5875421 (W.D. La. Oct. 7, 2016) (finding
that the petitioner’s Rule 60 motion presented a successive habeas application where “the Court did not
rely on procedural default in its [prior] ruling on his § 2254 habeas petition…. The issues raised in Caston’s
Rule 60(b) motion have been fully litigated, and the recent Coleman decision is inapplicable”).
Thus, the instant motion, which seeks reconsideration of Petitioner’s substantive
ineffective assistance claims is in the nature of a successive application for habeas
corpus relief within the meaning of 28 U.S.C. § 2244(b). 18 Pursuant to 28 U.S.C. §
2244(b)(3)(A), “[b]efore 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.”19 Petitioner has not presented this Court with an Order
from the Fifth Circuit Court of Appeals allowing him to proceed with this successive
application for federal habeas corpus relief.
This Court cannot consider the instant
habeas corpus petition because, without an order from the Fifth Circuit, this Court lacks
subject matter jurisdiction over Petitioner’s successive application. 20
instant application should be considered, in part, as a motion for authorization to proceed
with this successive habeas corpus application and should be transferred to the United
States Court of Appeals for the Fifth Circuit, pursuant to 28 U.S.C. § 1631, in order for
that Court to determine, in the first instance, whether to grant Petitioner authorization to
file the instant habeas corpus petition in this Court.21 Accordingly,
Cf., United States v. Short, 2017 WL 3587515 (5th Cir. Aug. 18, 2017) (“Because [petitioner’s] Rule 60(b)
motion challenged the denial of the ineffective assistance claim in part on the merits …, the district court
correctly determined that the motion was an unauthorized successive § 2255 motion”); In re Sepulvado,
707 F.3d 550 (5th Cir. 2013) (determining that a petitioner’s claim of ineffective assistance of counsel
brought in reliance upon Martinez v. Ryan, supra, presented a successive habeas corpus application within
the meaning of that section).
See Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
See In re: Tony Epps, 127 F.3d 364, 365 (5th Cir. 1997).
IT IS HEREBY ORDERED that Petitioner’s Application22 for Rule 60(b)(6) Relief
be considered, in part, as a motion for authorization to proceed with this successive
habeas corpus application and that the motion be transferred to the United States Court
of Appeals for the Fifth Circuit, pursuant to 28 U.S.C. § 1631, in order for that Court to
determine whether to grant Petitioner authorization to proceed with the instant habeas
corpus application in this Court.23
Signed in Baton Rouge, Louisiana on September 27, 2017.
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
Rec. Doc. 21.
See In re: Tony Epps, supra.
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