McClendon v. Cain et al

Filing 31

RULING AND ORDER denying without prejudice 30 Motion for Relief from Judgment Pursuant to Fed. R. Civ. P. 60(b). Signed by Judge Brian A. Jackson on 7/28/2021. (SWE)

Case 3:12-cv-00615-BAJ-RLB

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

VICTOR MCCLENDON CIVIL ACTION
VERSUS
N. BURL CAIN, ETAL. NO. 12-00615-BAJ-RLB

RULING AND ORDER
Before the Court is Petitioners IMotion for Relief from Judgment
Pursuant to Fed. R. Civ. P. 60(b). (Doc. 30).

I. BACKGROUND
On September 27, 2012, Petitioner filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.G. § 2254. (Doc. 1). Therein, Petitioner asserted multiple
challenges to his convictions, including a challenge to the non-unanimous verdicts
received on several counts. (See Doc. 7; Doc. 19, p. 1). The Magistrate Judge

recommended that Petitioner s application for habeas corpus relief be denied as
untimely pursuant to 28 U.S.C. § 2254(d). (Doc. 19). The Court approved the
Magistrate Judge's Report and Recommendation, adopted it as the Court's opinion,

and dismissed Petitioner's § 2254 Petition with prejudice. (Doc. 21; Doc. 1).
The Court notes that prior to filing his September 27, 2012 Petition in this
Court, Petitioner appealed his conviction in state court. State v. McClendon,

2005-0273 (La.App. 1st Cir. 3/24/06), 925 So. 2d 773, writ denied, 2006-0945
(La. 10/27/06), 939 So. 2d 1276. There, Petitioner also appealed certain convictions

1

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that resulted from non-unanimous verdicts. (Doc. 12, p. 6). The

Louisiana First Circuit Court of Appeal affirmed Petitioner s conviction and
sentence. State v. McClendon, 2005-0273 (La. App. 1st Cir. 3/24/06), 925 So. 2d 773,
writ denied, 2006-0945 (La. 10/27/06), 939 So. 2d 1276. The Louisiana Supreme Court
denied certiorari. State v. McClendon, 2006-0945 (La. 10/27/06), 939 So. 2d 1276.
Petitioner now brings a Rule 60(b) Motion arguing that he was "convicted
non-unanimously on Counts 1, 2, 10, and 12, and Ramos v. Louisiana, — U.S. —,

140 S. Ct. 1390, 206 L.Ed.2d 583 (2020) "held that Louisiana's non-unanimous
majority verdict scheme was unconstitutional. (Doc. 30, p. 2~~3).

II. DISCUSSION
In his Rule 60(b) Motion, Petitioner seeks to have his habeas proceeding
reopened based on- an alleged substantive change in the law brought about by Ramos
v. Louisiana, — U.S. —, 140 S. Ct 1390, 206 L.Ed.2d 583 (2020).

The United States Supreme Court has found that a Rule 60(b) motion
contending that a subsequent change in substantive law is a reason justifying relief,
Fed. Rule Civ. Proc. 60(b)(6)," should be treated as a successive habeas petition.1

Gonsalez v. Crosby, 545 U.S. 524, 531, 125 S. Ct. 2641, 2647, 162 L. Ed. 2d 480 (2005)
(internal citations and quotations omitted). The Court explained, "[a] habeas
petitioner's filing that seeks vindication of such a claim is, if not in substance a

1 The Court declared, [vjirtually every Court of Appeals to consider the question has held
that such a pleading, although labeled a Rule 60(b) motion, is in substance a successive
habeas petition and should be treated accordingly. We think those holdings are correct."
Gonzalez v. Crosby, 545 U.S. 524, 531, 125 S. Ct. 2641, 2647, 162 L. Ed. 2d 480 (2005)
(internal citations omitted).

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habeas corpus application/ at least similar enough that failing to subject it to the
same requirements would be inconsistent with' the statute[,] 28 U.S.C. § 2254.M

Accordingly, the Court will treat Petitioner's Rule 60(b) Motion as a successive habeas
petition. (Doc. 64).

28 U.S.C. § 2244(b)(l) and (2) authorize dismissal of "second or successive"
habeas corpus petitions unless certain requirements are satisfied.2 Additionally,

28 U.S.C. § 2244(b)(3) directs a petitioner filing a "second or successive" habeas
petition to obtain authorization from the appropriate Court of Appeals before filing
the petition in District Court. Permitting a Rule 60(b) motion without prior
authorization would impermissibly circumvent the requirement that a successive

habeas petition be precertified by the court of appeals as falling within an exception
to the successive-petition bar[,] § 2244(b)(3)." Gonzales, 545 U.S. at 532.

2 28 U.S.C. § 2244(b)(l) and (2) provides:
(b)(l) A claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be
dismissed.

(2) A claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed
unless-

(A) the applicant shows that the claim relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that

was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.

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In the instant case, Petitioner did not seek an Order from the

United States Court of Appeals for the Fifth Circuit authorizing this Court to
consider his successive petition as required by 28 U.S.C. § 2244(b)(3). Accordingly,
the Court does not have jurisdiction to consider Petitioner's Rule 60(b) Motion.3

HI. CONCLUSION
Accordingly,
IT IS ORDERED that Petitioner's Motion for Relief from Judgment

Pursuant to Fed. R. Civ. P. 60(b) (Doc. 30) is DENIED WITHOUT
PREJUDICE.

?^r

Baton Rouge, Louisiana, this 0 day of July, 2021

a
JUDGE BRIAKA^JACKSON

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

3 The Court, however, directs the pro se Petitioner to the United States Supreme Court's
recent decision in Edwards v. Vannoy, 141 S. Ct. 1547, 1551, 209 L. Ed. 2d 651 (2021),
wherein the Court held:
Last Term in Ramos a Louisiana, 590 U. S. —, 140 S.Ct. 1390,

206 L.Ed.2d 583 (2020), this Court held that a state jury must be unanimous
to convict a criminal defendant of a serious offense. Ramos repudiated this
Court's 1972 decision in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628,
32 L.Ed.2d 184, which had allowed non-unanimous juries in state criminal
trials. The question in this case is whether the new rule of criminal
procedure announced in Ramos applies retroactively to overturn final
convictions on federal collateral review. Under this Court's
retroactivity precedents, the answer is no.

Edwards, 141 S. Ct. at 1551 (emphasis added).

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