Jennings v. Groose
MEMORANDUM AND ORDER re: 28 MOTION for Relief from Judgment Under Federal Rule of Civil Procedure 60(b)(6) filed by Petitioner Marvin Jennings. IT IS HEREBY ORDERED that petitioner's motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6) [#28] is denied in part and dismissed in part for lack of jurisdiction; the motion is denied to the extent the motion is treated as one brought under Rule 60(b)(6), and dismissed for lack of jurisdiction as a second or succe ssive habeas petition in all other respects. IT IS FURTHER ORDERED that a certificate of appealability is denied as petitioner has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Catherine D. Perry on March 31, 2015. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Case No. 4:94CV1349 CDP
MEMORANDUM AND ORDER
In 1988, petitioner was convicted by a jury in Missouri state court on five
counts of first degree murder, two counts of first degree assault, one count of first
degree robbery, and eight counts of armed criminal action. He was sentenced to
life imprisonment without the possibility of parole on the first degree murder,
robbery, and armed criminal action convictions, plus fifteen years on each assault
conviction, with all sentences to run consecutively. After appealing his
convictions and the denial of post-conviction relief to the Missouri Court of
Appeals, petitioner filed the instant case for habeas relief under 28 U.S.C. ' 2254.
I denied habeas relief on July 31, 1997. (Docs. #14 and #15). The Eighth Circuit
Court of Appeals denied petitioner’s application for certificate of appealability and
issued the mandate. (Docs. #23 and #24). Petitioner sought leave to file a
successive habeas petition with the Eighth Circuit on April 16, 2004, which was
denied on June 3, 2004. (Doc. # 27). Petitioner now moves to reopen his closed '
2254 case under Fed. R. Civ. P. 60(b)(6).
A court may grant relief under Rule 60(b)(6) for Aany other reason that
justifies relief@ when a motion is made Awithin a reasonable time.@ Fed. R. Civ. P.
60(b)(6). Petitioners sometimes request relief under Rule 60(b) when the motion is
more properly characterized as a successive ' 2254 petition. See, e.g., Boyd v.
United States, 304 F.3d 813, 814 (8th Cir. 2002). However, a state prisoner may
file a second or successive motion under ' 2254 only after obtaining authorization
to do so from the appropriate United States Court of Appeals. 28 U.S.C. '
2244(b)(3). Where a prisoner files a Rule 60(b) motion following the dismissal of
a habeas petition, the district court must determine whether the allegations in the
Rule 60(b) motion in fact amount to a second or successive collateral attack under
28 U.S.C. ' 2254. Boyd, 304 F.3d at 814. If the Rule 60(b) motion Ais actually a
second or successive habeas petition, the district court should dismiss it for failure
to obtain authorization from the Court of Appeals or, in its discretion, may transfer
the motion . . . to the Court of Appeals.@ Id. AIt is well-established that inmates
may not bypass the authorization requirement of 28 U.S.C. ' 2244(b)(3) for filing
a second or successive ' 2254 . . . action by purporting to invoke some other
procedure.@ United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005).
A Rule 60(b) motion that merely alleges a defect in the integrity of the
habeas proceedings is not a second or successive habeas petition. See Gonzalez v.
Crosby, 545 U .S. 524, 535B36 (2005) (Rule 60(b) motion challenging district
court=s previous ruling on statute of limitations was not the equivalent of a
successive habeas petition). A Rule 60(b) motion is also not a successive habeas
petition if it Amerely asserts that a previous ruling which precluded a merits
determination was in error -- for example, a denial for such reasons as failure to
exhaust, procedural default, or statute-of-limitations bar.@ Id. at 532 n.4.
However, a Rule 60(b) motion is a successive petition if it contains a claim, which
is defined as an Aasserted federal basis for relief@ from a judgment of conviction or
as an attack on the Afederal court=s previous resolution of the claim on the merits.@
Id. at 530, 532. AOn the merits@ refers Ato a determination that there exist or do not
exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. ''
2254(a) and (d).@ Id. at 532 n. 4. When a Rule 60(b) motion presents a claim, it
must be treated as a second or successive habeas petition.
Petitioner=s motion will be denied. Petitioner challenges the Court’s ruling
that Ground 10 of his habeas petition was not cognizable in habeas proceedings.
Ground 10 of petitioner’s habeas motion stated as follows:
The motion court clearly erred in failing to enter specific findings of
facts and conclusions of law as to each of the allegations raised by
petitioner in his pro se motion for postconviction relief, because
Missouri Supreme Court Rule 29.15(i) requires the motion court to
issue findings of fact and conclusions of law on all issues presented,
in that specific findings of fact and conclusions of law are necessary
for this Court to engage in meaningful review to determine whether
the hearing court’s judgment was clearly erroneous. Thus, petitioner
was denied due process and equal protection of the law to a full and
fair hearing as guaranteed by the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution.
(Doc. #3 at 21). In denying this ground for relief, the Court held that petitioner’s
tenth ground, which asserted “that the motion court’s decision was inadequate
because it failed to explicitly address the claims petitioner raised in his February
23, 1990, Rule 29.15 motion . . . is [not] an attack on the constitutionality of
petitioner’s confinement . . . Instead, [this] ground [is a] challenge to the way
proceedings collateral to petitioner’s confinement [are] conducted, and such
challenges are not cognizable in a petition for writ of habeas corpus.” (Doc. #14 at
To the extent petitioner is attempting to challenge this Court’s prior
determination that this claim is not cognizable in habeas proceedings, this
argument -- even if properly before me -- would fail as this claim remains noncognizable. “Federal habeas courts are only authorized to review the
constitutionality of a state criminal conviction, not infirmities in a state postconviction relief proceeding.” Prince v. Bowersox, 2014 WL 4954084, at *16
(W.D. Mo. Oct. 2, 2014) (claims that post-conviction court erred in denying a
motion for change of judge and adopting state’s proposed findings of fact are not
cognizable in federal habeas review as they are collateral to petitioner’s
conviction). Although petitioner cites to Martinez v. Ryan, 132 S. Ct. 1309 (2012),
in support of his position that this motion is not a successive habeas petition, that
case does not apply here because I did not conclude that petitioner’s claim was
procedurally defaulted. Martinez held that “inadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” Id. at 1315. As
petitioner brought no claims of ineffective assistance in his habeas petition
(defaulted or otherwise), Martinez is inapposite. Martinez does not hold, as
petitioner seems to suggest, that non-cognizable claims may be decided on the
merits if a petitioner alleges inadequate assistance of post-conviction counsel.
Cognizability and procedural default are two different things. While allegations of
ineffective assistance of post-conviction counsel may be sufficient to avoid a
procedural bar after Martinez, they cannot permit a court to review a claim that is
not cognizable in habeas proceedings. To the extent this argument is properly
before me on a Rule 60(b) motion, it is denied. To the extent that it is not, it shall
be treated as a successive petition and denied because petitioner has not obtained
certification to file a successive motion from the Eighth Circuit.
To the extent petitioner is attempting to argue that Ground 10 -- or any other
ground of his habeas petition -- actually raised ineffective assistance of trial
counsel claims, he is wrong. Petitioner did not allege any ineffective assistance of
counsel claims in his habeas petition. Arguing that the post-conviction court erred
by not making specific findings of fact on an earlier pro se 29.15 motion -- which
may have included ineffective assistance of counsel claims -- does not amount to
bringing ineffective assistance of counsel claims. To the extent petitioner is now
attempting to bring ineffective assistance of counsel claims, petitioner’s Rule 60(b)
motion shall be treated as a successive petition and denied because petitioner has
not obtained certification to file a successive motion from the Eighth Circuit.
To the extent petitioner attempts to assert independent claims that his postconviction counsel was ineffective for abandoning claims during the postconviction proceeding, such claims are not cognizable in a federal habeas
proceeding, either. See, Reed v. Norman, 2014 WL 1413536, at *2 n.2 (E.D. Mo.
April 11, 2014) (“The Court [in Martinez ] did not hold, as Petitioner appears to
argue, that a claim for ineffectiveness of postconviction-relief counsel is an
independently cognizable claim.”) (internal quotation marks and citation omitted);
Yarberry v. Sachse, 2013 WL 3231539, at *5 (W.D. Mo. Jun. 26, 2013) (“If
petitioner intends to assert an independent claim of ineffective assistance of postconviction counsel, petitioner’s claim is not cognizable in federal habeas.”); 28
U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal
or State collateral post-conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.”). As petitioner has not obtained
certification to file a successive motion from the Eighth Circuit, petitioner’s
successive petition will be denied.
Moreover, a motion under Rule 60(b)(6) must be Amade within a reasonable
time.@ Fed. R. Civ. P. 60(c)(1). What constitutes Aa reasonable time@ depends on
the circumstances. Middleton v. McDonald, 388 F.3d 614, 617 (8th Cir. 2004).
Although petitioner argues that an intervening change in the law (Martinez)
justifies his lengthy delay in filing this motion, Martinez does not apply to
petitioner’s case or constitute adequate cause for delay. Because petitioner
advances no arguments demonstrating that his Rule 60(b) motion was filed within
a reasonable time, to the extent petitioner’s motion is treated as a Rule 60(b)
motion it will also be denied as untimely filed.
Finally, I have also considered whether to issue a certificate of appealability.
To grant a certificate of appealability, the Court must find a substantial showing of
the denial of a federal constitutional right. See Tiedeman v. Benson, 122 F.3d 518,
522 (8th Cir. 1997). A substantial showing is a showing that issues are debatable
among reasonable jurists, a court could resolve the issues differently, or the issues
deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997)
(citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)). Because petitioner
has not made such a showing, I will not issue a certificate of appealability.
IT IS HEREBY ORDERED that petitioner=s motion for relief from
judgment under Federal Rule of Civil Procedure 60(b)(6) [#28] is denied in part
and dismissed in part for lack of jurisdiction; the motion is denied to the extent the
motion is treated as one brought under Rule 60(b)(6), and dismissed for lack of
jurisdiction as a second or successive habeas petition in all other respects.
IT IS FURTHER ORDERED that a certificate of appealability is denied as
petitioner has not made a substantial showing of the denial of a federal
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 31st day of March, 2015.
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