Jean-Louis v. Louisiana State Penitentiary

Filing 27

REPORT AND RECOMMENDATIONS re 25 MOTION for Reconsideration re 10 Judgment Adopting Report and Recommendations, filed by Gregory Jean-Louis. IT IS RECOMMENDED that the instant Motion for Relief from Judgment Pursuant to F.R.C.P. Rule 60(b) be con strued as a second or successive federal habeas corpus petition pursuant to 28 U.S.C. §2244(b) and therefore be DISMISSED for lack of subject matter jurisdiction, and alternatively, DENIED and DISMISSED on the merits. Objections to R&R due by 9/3/2009. Signed by Magistrate Judge C Michael Hill on 8/17/09. (crt,Roaix, G)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA G R E G O R Y JEAN-LOUIS V S. L O U I S I A N A STATE PENITENTIARY C I V I L ACTION NO. 08-0481 S E C T IO N P J U D G E DOHERTY M A G I S T R A T E JUDGE HILL R E P O R T AND RECOMMENDATION B e f o re the Court the Motion for Relief from Judgment pursuant to FRCP Rule 6 0 (b ) filed in proper person by Gregory Jeanlouis. [rec. doc. 25]. Petitioner is currently c o n f in e d in the Louisiana State Penitentiary in Angola, Louisiana, serving a life sentence im p o sed following petitioner's February 7, 1996 conviction for second degree murder. T h is matter was referred to the undersigned for Report and Recommendation. FACTUAL AND PROCEDURAL HISTORY By this motion, Jeanlouis requests that this court vacate it's previous June 16, 2008 Ju d g em en t denying and dismissing his untimely filed federal petition for habeas corpus re lief pursuant to FRCP Rule 60(b)(6). Jeanlouis contends that this court should re c o n sid e r its prior decision finding his federal habeas corpus petition barred by the one ye a r time limitation codified at 28 U.S.C. § 2244(d) because his alleged incompetence to stan d trial in 1996 constituted a "fraud upon the court." After presenting this conclusory c la im to relief under Rule 60(b), Jeanlouis rambles on for over eighty pages challenging th e state court's determination of his competence and his alleged ineffective assistance of

tria l counsel, in essence requesting this court to review the merits of his untimely filed p e titio n . He does not assert any procedural defect in this court's prior resolution of his p e titio n such as a misapplication of the statute of limitation, but rather directly attacks the s u b s ta n c e of the state court's findings with respect to his claims on the merits. This court's record indicates that by Report and Recommendation, the undersigned r e c o m m e n d e d that petitioner's habeas corpus petition be dismissed as time barred. This re c o m m e n d a tio n was primarily based on the fact that petitioner did not file his federal h a b e a s petition until March 28, 2008, approximately one year and four and one-half m o n th s after the Louisiana Supreme Court's November 9, 2006 denial of petitioner's writ a p p lic a tio n in post-conviction proceedings, and the undersigned's finding that petitioner w as not entitled to equitable tolling. [rec. doc. 6]. After consideration of petitioner's o b je c tio n s , on June 16, 2008, Judge Doherty determined that the undersigned's findings a n d recommendation were correct, and accordingly, dismissed Jeanlouis' petition as b a rre d by the one-year statute of limitations codified at 28 U.S.C. § 2244(d). [rec. doc. 1 0 ]. Petitioner's "Motion for Rehearing En Banc" was denied by the Court on July 10, 2 0 0 8 . [rec. doc. 12]. P e titio n e r attempted to appeal this Court's Judgment to the United States Fifth C irc u it Court of Appeals, arguing that a Certificate of Appealability should be issued on g ro u n d s that the limitations period should have been equitably tolled due to his mental illn e ss . On March 19, 2009, the Fifth Circuit rejected petitioner's argument and denied

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h is request for a certificate of appealability. [rec. doc. 24]. Despite the appellate court's adverse ruling with respect to his untimely filed § 2 2 5 4 petition, on June 15, 2009, Jeanlouis filed the instant Motion, purportedly under R u le 60(b), in which he again attempts to obtain review of the merits of his claims. For the following reasons, the undersigned RECOMMENDS that the instant Motion for Relief from Judgment Pursuant to F.R.C.P. Rule 60(b) be construed as a s e c o n d or successive federal habeas corpus petition pursuant to 28 U.S.C. §2244(b) and th e re f o re be DISMISSED for lack of subject matter jurisdiction, and alternatively, D E N I E D and DISMISSED on the merits. L A W AND ANALYSIS I . Second or Successive Petition I n light of the above procedural history, as a threshold matter, this court must d e te rm in e whether petitioner's Motion is properly construed as a second and successive § 2254 petition filed without proper authorization or whether this court has jurisdiction to c o n s id e r petitioner's motion under Rule 60(b). Petitioner cites the United States Supreme Court's decision in Gonzalez v. Crosby, 5 4 5 U.S. 524, 125 S.Ct. 2641 (2005) in support of the instant Rule 60(b) Motion. In G o n z a le z, the Court held that relief is available under Rule 60(b) in habeas proceedings, b u t only to the extent that the Motion is not inconsistent with the federal statutory p ro v is io n s and rules set forth by AEDPA, including its limits on successive federal

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p e titio n s . Id. at 529. The Court held that a Rule 60(b) Motion filed after disposition of a § 2254 habeas c o r p u s petition is properly construed as a successive habeas petition if it presents a " c la im ." Id. at 530. A "claim" is defined as "an asserted federal basis for relief from a s ta te court's judgment of conviction." Id. The Court explained that a Rule 60(b) Motion f ile d after disposition of a § 2254 habeas corpus petition advancing one or more new " c la im s " or attacking the federal court's previous resolution of a "claim" on the merits, a lth o u g h labeled a Rule 60(b) Motion, is, in substance, a successive habeas petition and s h o u ld therefore be treated accordingly. Id. at 530-531. The Court recognized that if this w ere not the case, such pleadings would be inconsistent with and circumvent AEDPA's re q u ire m e n ts on the filing of habeas corpus actions. Id. at 531. On the other hand, when no "claim" is presented, that is, when neither the Motion its e lf , nor the federal judgment from which it seeks relief, substantively addresses federal g ro u n d s for setting aside the movant's conviction or sentence, allowing the Motion to p ro c e ed as denominated creates no inconsistency with the habeas statutes or rules, and th e re f o re the Motion may properly be considered. Id. at 533. In other words, "a Rule 6 0 (b ) Motion in a § 2254 case is not to be treated as a successive habeas petition if it does n o t assert, or reassert, claims of error in the movant's state conviction." Id. at 538. Thus, w h e n a 60(b) Motion asserts some defect in the integrity of the federal habeas p ro c e ed in g , such as a procedural argument that the federal court misapplied the federal

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s ta tu te of limitations, no "claim" is presented and hence, the Motion is not a new c o lla te ra l attack. Id. at 532. See also United States v. Scott, 414 F.3d 815, 816 (7 th Cir. 2 0 0 5 ); Ruiz v. Quarterman, 504 F.3d 523, 526 (5 th Cir. 2007). In this case, the Motion itself substantively addresses numerous federal grounds f o r setting aside petitioner's state court conviction. Petitioner asserts not only his c o u n se l's ineffectiveness for allegedly failing to present an insanity defense or evidence o f his alleged mental defect (the sole ground for relief in the prior petition), but he also ra is e s a host of "new" claims directed at the state court's determination of his competency to stand trial. Petitioner does not seek to cure a procedural defect with respect to this court's p rio r disposition of his petition. There is no procedural argument presented and petitioner a ss e rts no defect in the integrity of these federal proceedings. Thus, allowing the motion to proceed as denominated creates an inconsistency with the habeas statutes and rules, a n d therefore the Motion may not properly be considered. In other words, because the M o tio n does not challenge this court's failure to reach and address the merits of his p e titio n based on some procedural error, but rather the Motion presents "claims" for relief d ire c te d at the validity of the underlying state court judgment of conviction, the instant M o tio n constitutes a new collateral attack. See Bishop v. Epps, 2008 WL 2831273, *3 (5 th Cir. 2008); United States v. Bain, 2009 WL 320702, *2 (5 th Cir. 2009); United States v . Berry, 262 Fed.Appx. 614 (5 th Cir. 2008). As such, the instant Motion is a successive

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§ 2254 petition that requires pre-certification from the appropriate appellate court. B e f o re a petitioner can proceed with a second or successive habeas petition, he is re q u ire d to move in the appropriate circuit court of appeals for an order authorizing the d is tric t court to consider the application. See 28 U.S.C. § 2244(b)(3)(A).1 Petitioner has n o t received such authorization. Accordingly, until such time as petitioner obtains said a u th o riz a tio n , this Court is without jurisdiction to proceed. United States v. Key, 205 F .3 d 773, 774 (5 th Cir. 2000). Therefore, this court lacks subject matter jurisdiction to c o n s id e r this motion and the motion must be dismissed on that basis. II. Merits H o w e v e r, in the event that this court has jurisdiction to entertain the instant M o tio n , it is clear that relief under Rule 60(b) is unavailable to Jeanlouis. Rule 60(b) p ro v id e s six alternative grounds for relief: "(1) mistake, inadvertence, surprise, or e x c u sa b le neglect; (2) newly discovered evidence which by due diligence could not have b e e n discovered in time to move for a new trial under rule 59(b); (3) fraud (whether h e re to f o re denominated intrinsic or extrinsic), misrepresentation, or other misconduct of a n adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, o r discharged, or a prior judgment upon which it is based has been reversed or otherwise v a c ate d , or it is no longer equitable that the judgment should have prospective

Title 28 U.S.C. § 2244(b)(3)(A) provides, "[b]efore a second or successive application permitted by this s e c tio n is filed in the district court, the applicant shall move in the appropriate court of appeals for an order a u t h o r i z i n g the district court to consider the application."

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a p p lic a tio n ; or (6) any other reason justifying relief from operation of the judgment." Generally, the burden of establishing at least one of these reasons is on the moving p a rty. United States v. Harrison County, Mississippi, 463 F.2d 1328, 1330 (5th C ir.1 9 7 2 ). The decision to grant or deny relief under Rule 60(b) lies within the sound d is c re tio n of the district court. Edwards v. City of Houston, 78 F.3d 983, 995 (5 th Cir. 1 9 9 6 ) (en banc). Jeanlouis recites the language of Rule 60(b), and conclusorily asserts that his a lle g e d incompetence during his state court criminal proceedings in some way constitutes a "fraud upon [this] court." He fails to explain why, pursuant to FRCP 60(b), he should b e relieved from this court's judgment finding his federal habeas petition was untimely f iled . Rather, petitioner makes a vague reference to Rule 60(b) in an attempt to gain m e rits review of claims previously presented to this court in an untimely fashion, without a n y argument whatsoever that this court's prior disposition was in any way procedurally im p ro p e r. Indeed, given the Fifth Circuit's denial of petitioner's request for a certificate o f appealability, it would appear that any such argument is foreclosed. Furthermore, as noted by the United States Supreme Court in Gonzalez, while f ra u d on the federal habeas court may justify Rule 60(b) relief, the fraud must relate "to th e integrity of the federal habeas proceeding, not to the integrity of the state criminal tria l." Gonzalez, 545 U.S. at 532 fn. 5 quoting Rodriguez v. Mitchell, 252 F.3d 191, 199 (2 n d Cir, 2002). Petitioner's alleged "fraud" is in connection with the state court's

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d e ter m in a tio n of his competency to stand trial, and is unrelated to this federal habeas c o r p u s proceeding. For these reasons, Jeanlouis has failed to satisfy his burden of estab lish ing a permissible reason for relief under Rule 60(b). Accordingly, petitioner's R u l e 60(b) Motion should be denied on the merits. T h e undersigned also notes that on the record before this court, Jeanlouis does not q u a lif y for relief under subsections one through five of Rule 60(b). Jeanlouis has not e sta b lis h e d mistake, inadvertence, surprise, or excusable neglect with respect to this or th e appellate court's prior disposition of his § 2254 petition.2 Moreover, his proposed s u b s ta n tiv e claims are not based on newly discovered evidence which in the exercise of d u e diligence could not have been previously discovered. To the contrary, petitioner's c la im s focus on events which occurred prior to and during his 1996 state court trial and d u rin g state post-conviction proceedings which began in 1998 and ended in 2006. There w a s no fraud, misrepresentation, or other misconduct by the State during these p ro c e ed in g s . To the contrary, Jeanlouis' petition was denied and dismissed sua sponte by th is court without the necessity of a response by the State. Petitioner's judgment of c o n v ictio n and sentence are not void, and this court's prior judgment with respect to p e titio n e r's § 2254 motion has not been reversed or otherwise vacated, nor is it in e q u ita b le that this judgment have prospective application.

Section 60(b)(1) is addressed to mistake, inadvertence, surprise or excusable neglect in connection with the h a b e a s proceeding and not the trial at which the habeas proceeding is aimed. Yuk Chun Kwong v. United States, 2 0 0 5 W L 2076599, *2 (E.D.N.Y. 2005) (citations omitted).

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M o re o v e r, Jeanlouis does not qualify for relief under Rule 60(b)(6). Rule 60(b)(6) o p e ra te s as a catchall provision. Hess v. Cockrell, 281 F.3d 212, 216 (5 th Cir. 2002). A c c o rd in g ly, relief under Rule 60(b)(6) is warranted only in "exceptional circumstances." Id.; Gonzalez, 545 U.S. at 536. This case simply does not present the court with the u n iq u e circumstances warranting relief under Rule 60(b)(6). Jeanlouis had an opportunity to object to the undersigned's Report and Recommendation and he availed himself of that o p p o rtu n ity. Moreover, Jeanlouis sought a "rehearing" on his claims in this court. Jeanlouis also sought appellate review of this court's adverse decision. While the Fifth Circuit declined to grant petitioner an appeal of this court's d e c isio n , Rule 60(b) motions may not be used as a substitute for the ordinary appellate p ro c e s s . See Hess, 281 F.3d at 216. See also Cureaux v. United States, 124 Fed.Appx. 8 2 6 , 827 (5 th Cir. 2005). For these reasons, exceptional circumstances are not present and re lie f under Rule 60(b)(6) is not warranted. A c c o r d i n g l y; I T IS RECOMMENDED that the instant Motion for Relief from Judgment P u r s u a n t to F.R.C.P. Rule 60(b) be construed as a second or successive federal habeas c o r p u s petition pursuant to 28 U.S.C. §2244(b) and therefore be DISMISSED for lack of s u b je c t matter jurisdiction, and alternatively, DENIED and DISMISSED on the merits. U n d e r the provisions of 28 U.S.C. §636(b)(1)(C) and Rule 72(b), parties aggrieved b y this recommendation have ten (10) business days from service of this report and

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recommendation to file specific, written objections with the Clerk of Court. A party may re sp o n d to another party's objections within ten (10) days after being served with a copy o f any objections or response to the District Judge at the time of filing. F a ilu r e to file written objections to the proposed factual findings and/or the p r o p o s e d legal conclusions reflected in this Report and Recommendation within ten (1 0 ) days following the date of its service, or within the time frame authorized by F e d .R .C iv .P . 6(b), shall bar an aggrieved party from attacking either the factual fin d in g s or the legal conclusions accepted by the District Court, except upon g r o u n d s of plain error. See Douglass v. United Services Automobile Association, 79 F .3 d 1415 (5th Cir. 1996). T H U S DONE AND SIGNED in chambers, in Lafayette, Louisiana, this the 17 th d a y of August, 2009.