Thompson v. Missouri Board Of Pa, et al
ORDER. IT IS HEREBY ORDERED THAT: 1. Defendant's Rule 60(d)(3) motion 65 is DENIED WITH PREJUDICE. 2. Defendant's Motion to Expedite 73 is DENIED AS MOOT. 3. No certificate of appealability will be issued. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Patrick J. Schiltz on November 29, 2017. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 88‐CV‐0837 (PJS/FLN)
MISSOURI BOARD OF PAROLE and
UNITED STATES ATTORNEY,
Douglas Thompson, pro se.
This matter is before the Court on plaintiff Douglas Thompson’s motion under
Rule 60(d)(3) of the Federal Rules of Civil Procedure to set aside a judgment that was
entered by this Court in 1989. For the reasons that follow, Thompson’s motion is
In 1961, Thompson escaped from a California jail (where he was serving a
sentence for armed robbery), went on a crime spree, and killed a police officer and
another man in Missouri. After a total of four trials, Thompson was convicted of both
murders and sentenced to life in prison. See Thompson v. Denney, No. 4:13CV1241 TIA,
2013 WL 3884168, at *1‐3 (E.D. Mo. July 26, 2013) (reviewing Thompson’s “extensive
Thompson was released on parole in 1986. Two years later, he was arrested in
Minnesota and charged with several federal crimes, including bank robbery and
firearms offenses. Thompson pleaded guilty and was sentenced to 20 years in federal
Missouri filed a detainer asking that Thompson be returned to its custody after
he finished serving his federal sentence so that he could be held accountable for parole
violations. See id. at *2. In response, Thompson filed a habeas petition in this Court,
claiming that the Missouri detainer was invalid because he was no longer on parole.
Specifically, Thompson argued that he had served at least five years on parole,1 and that
a Missouri law—§ 558.011.4 of the Missouri Revised Statutes—required that defendants
be discharged from parole after five years. Both this Court and the Eighth Circuit
rejected Thompson’s argument on the ground that § 558.011.4 did not apply to crimes
(such as Thompson’s murders) that were committed before 1979. See Thompson v. Mo.
Bd. of Parole, 929 F.2d 396, 398‐99 (8th Cir. 1991).
Thompson served his federal sentence and then, pursuant to the detainer, he was
returned to the custody of Missouri. It is unclear what happened next; presumably
Missouri initiated parole‐revocation proceedings. See id. at 401 n.12 (noting that
Thompson had, in fact, served only three years on parole, but he argued that the
final two years of his incarceration should “count” as time on parole because that
incarceration was unlawful. See Thompson v. Mo. Bd. of Parole, 929 F.2d 396, 398 (8th Cir.
Missouri had initiated parole revocation proceedings “[b]ecause Thompson left the state
of Missouri in 1987 and thereafter failed to report to his parole officer”).
At any rate, Thompson now moves under Rule 60(d)(3) for this Court to set aside
its 28‐year‐old ruling that the Missouri detainer was valid because, Thompson says,
“the Missouri Attorney General’s Office perpetrat[ed] ‘a fraud on the Court.’” ECF
No. 65 at 1.2
The Court does not appear to have jurisdiction over Thompson’s motion.
Thompson challenges the 1989 judgment upholding the validity of the 1988 Missouri
detainer. But Thompson was long ago released from federal custody and returned to
Missouri pursuant to that detainer. The Court does not understand how a ruling that
the 1988 Missouri detainer was invalid would have any impact on Thompson. See
Thompson v. Terrell, 209 F. App’x 852, 854‐55 (10th Cir. 2006). This case appears to be
Since 1991, Thompson has filed a raft of petitions seeking various forms of relief
under 28 U.S.C. §§ 2241, 2254, and 2255. See, e.g., Thompson v. Terrell, 209 F. App’x 852
(10th Cir. 2006); Thompson v. Booker, 52 F. App’x 317 (8th Cir. 2002); Thompson v. Nixon,
272 F.3d 1098 (8th Cir. 2001); Thompson v. True, 156 F.3d 1244 (10th Cir. 1998)
(unpublished table disposition); Thompson v. True, 106 F.3d 414 (10th Cir. 1997)
(unpublished table disposition); Thompson v. Mo. Bd. of Prob. & Parole, 39 F.3d 186 (8th
Cir. 1994); Thompson v. United States, 7 F.3d 1377 (8th Cir. 1993). The allegations in these
petitions are not relevant to the Court’s disposition of this motion.
That said, Thompson is proceeding pro se, and his papers are far from clear. It is
possible that declaring the 1988 Missouri detainer invalid would have some impact on
Thompson that is not apparent to the Court. It also appears that Thompson may be
seeking relief from more than just the 1988 Missouri detainer. The Court will therefore
address Thompson’s motion on the merits.
Rule 60(d)(3) allows a court to set aside a judgment for “fraud on the court.” But
“‘not all fraud is fraud on the court.’” United States v. Sierra Pac. Indus., Inc., 862 F.3d
1157, 1167 (9th Cir. 2017) (citation omitted). “In order to show fraud on the court, [the
movant] must demonstrate, by clear and convincing evidence, an effort by [the other
party] to prevent the judicial process from functioning ‘in the usual manner.’” United
States v. Estate of Stonehill, 660 F.3d 415, 445 (9th Cir. 2011) (citation omitted). Mere
nondisclosure of evidence generally is not enough to constitute fraud on the court. See
Tyler v. Purkett, 413 F.3d 696, 700 n.7 (8th Cir. 2005) (“Claims that a party did not
disclose to a court certain facts allegedly pertinent to the matter before it, however, do
not normally constitute fraud on the court.”). Rather, “a finding of fraud on the court
. . . ‘is justified only by the most egregious misconduct directed to the court itself, such
as bribery of a judge or jury or fabrication of evidence by counsel.’” United States v.
Smiley, 553 F.3d 1137, 1145 (8th Cir. 2009) (citation omitted).
Thompson claims that the Missouri Attorney General’s Office (the “AG”)
“deliberately perpetrated ‘a fraud on the Court’” when the AG argued that § 558.011.4
did not apply to crimes committed before 1979 and when the AG “deliberately
concealed” another Missouri statute (Mo. Rev. Stat. § 557.011.1) and a “1979 Legislative
Manual” that specifically “held” otherwise. ECF No. 65 at 1‐3. Thompson’s argument is
frivolous, for at least two reasons:
First, state statutes are public records, and thus the AG could no more have
“concealed” § 557.011.1 from this Court than he could have “concealed,” say, the United
States Constitution. Maybe Thompson did not have access to the Missouri statute while
he was in prison. See ECF No. 65 at 1 (claiming that Thompson “had no access to state
law”). But the statute was readily available to this Court.
Second, the AG did not “lie to the Court” when the AG argued that § 558.011.4
did not apply to crimes committed before 1979. ECF No. 65 at 3. In fact, the AG was
correct. As both this Court and the Eighth Circuit have already held, § 558.011.4 does
not apply to Thompson’s murders or to any other crime committed before 1979. The
Court will not rehash the analysis that it and the Eighth Circuit performed almost
30 years ago, but will confine itself to just a couple of brief observations:
To start with, what Thompson calls the “1979 Legislative Intent Manual” is
actually a guide titled “The New Missouri Criminal Code: A Manual for Court Related
Personnel.” ECF No. 66 at 4. This guide was “[p]repared by the University of Missouri‐
Columbia School of Law, Office of Continuing Legal Education and The Institute of
Public Safety Education.” Id. It is an unofficial commentary on Missouri’s revised
criminal code. See id. at 4‐8. It has no more legal status than, say, a newspaper column.
What is more, contrary to Thompson’s assertions, neither this guide nor
§ 557.011.1 “specifically” states that § 558.011.4 applies to pre‐1979 crimes. ECF No. 65
at 3. Section 557.011.1 (which was apparently enacted in 1977) directs that “for offenses
defined outside this code and not repealed,” the term of imprisonment or fine that may be
imposed “is that provided in the statute defining the offense,” but the term of conditional
release that may be imposed “shall be determined as provided in subsection 4 of section
558.011.” In other words, the statute provides direction to judges who must sentence
defendants who are convicted of offenses that are not included in the revised criminal
code. The statute does not say anything—much less anything “specific”—about the
question of whether § 558.011.4 applies to crimes committed before 1979.
Although that question is not answered by § 557.011.1, that question is clearly
answered by Mo. Rev. Stat. § 556.031.3. Section 556.031.3 states that “[t]he provisions of
[Missouri’s revised criminal code] do not apply to or govern the . . . construction of and
punishment for any offense committed prior to January 1, 1979.” Section 556.031.3 also
states that offenses committed before 1979 “must be . . . punished according to the
provisions of law existing at the time of the commission thereof in the same manner as
if this code had not been enacted.” Section 558.011.4 is part of Missouri’s revised
criminal code. Therefore, the AG did not lie to the Court when the AG argued that
§ 558.011.4 did not apply to crimes committed before 1979.
Because the AG did not commit fraud on the Court—either by “concealing”
§ 557.011.1 or by arguing that § 558.011.4 does not apply to crimes committed before
1979—Thompson is not entitled to relief under Rule 60(d)(3).
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
Defendant’s Rule 60(d)(3) motion [ECF No. 65] is DENIED WITH
Defendant’s “Motion to Expedite” [ECF No. 73] is DENIED AS MOOT.
No certificate of appealability will be issued.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: November 29, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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