Weeks v. Delo

Filing 83

MEMORANDUM AND ORDER -....-IT IS HEREBY ORDERED that petitioner Rubin Weekss motion for leave to proceed informa pauperis is DENIED as moot. [Doc. 79] IT IS FURTHER ORDERED that petitioner Rubin Weeks's motion for appointment of counsel is DENIED. [Doc. 80] IT IS FURTHER ORDERED that petitioner Rubin Weeks's motion for relief from final judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure is DISMISSED for lack of jurisdiction. [Doc. 78] IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge Charles A. Shaw on 3/30/2017. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

RUBIN WEEKS,
Petitioner,
v.
JASON LEWIS,1
Respondent.

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No. 4:94-CV-1704 CAS

MEMORANDUM AND ORDER
This closed matter is once again before the Court on petitioner’s second motion pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure for relief from final judgment. In his motion,
which was filed pro se, petitioner requests that the Court re-open his § 2254 habeas petition, which
was denied in 1995. Twenty-one years later, petitioner argues that he is entitled to relief because
this Court’s judgment was void in that it was based on a violation of due process that “deprived
petitioner of notice and the fair opportunity to be heard,” and because the state court that entered
judgment “acted in manner inconsistent with due process of law.” Doc. 78 at 1. Petitioner moves
for relief pursuant to Rule 60(b)(4) and (6) of the Federal Rules of Civil Procedure. Respondent
opposes the motion and argues petitioner is not entitled to the relief he requests because petitioner’s
motion is nothing more than a successive habeas petition, which this Court is precluded from

1

Petitioner is currently incarcerated at the Southeast Correctional Center in Charleston,
Missouri. Jason Lewis is the Warden of the Southeast Correctional Center, and as petitioner’s
custodian, he is the proper party respondent. See Rule 2(a) of the Rules Governing § 2254 Cases.

reviewing pursuant to 28 U.S.C. § 2244. For the following reasons, the Court will deny petitioner’s
request for relief from final judgment.2
I. Procedural Background
The Court outlined in detail the procedural history of this case in a Memorandum and Order
dated March 5, 2013. Doc. 6. For purposes of the motion presently before the Court, the following
events are relevant:
On February 13, 1992, petitioner pleaded guilty in Missouri state court to kidnaping and
rape. At his plea hearing, he admitted to committing the offenses and denied that anyone had
threatened or forced him to plead guilty. He also testified that his medication did not affect his
ability to plead guilty and, that while he was drowsy, he was clear-headed. Based on his plea, the
state court entered a judgment of guilty against him and sentenced him to concurrent sentences of
thirty years imprisonment and life imprisonment. Following his plea and sentencing, petitioner did
not file a motion pursuant to Missouri Supreme Court Rule 24.035.
On September 9, 1994, petitioner filed a state habeas petition. The state court dismissed the
petition on procedural grounds because petitioner had never filed a Rule 24.035 motion. On August
29, 1994, petitioner filed in United States District Court, Eastern District of Missouri, a federal

2

Also pending before the Court are petitioner’s motions for leave to proceed in forma
pauperis and for appointment of counsel. Petitioner’s motion for leave to proceed in forma pauperis
is denied as moot. Petitioner was previously granted leave to proceed in forma pauperis in this case.
See Doc. 2. As for petitioner’s motion for appointment of counsel, the Court finds that the
appointment of counsel is not warranted. There is no constitutional right to appointment of counsel
in a habeas corpus proceeding. See McClesky v. Zant, 499 U.S. 467, 494 (1991); Hoggard v.
Purkett, 29 F.3d 469, 471 (8th Cir. 1994). Petitioner has previously litigated this case with the
assistance of counsel, and at this point in the proceedings, the issues are neither factually nor legally
complex such that the Court or petitioner would benefit from the appointment of counsel. Battle v.
Armontrout, 902 F.2d 701, 702 (8th Cir. 1990).
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habeas petition, pursuant to 28 U.S.C. § 2254. This is the above-captioned cause of action. In his
§ 2254 petition, petitioner alleged four grounds for relief: (1) his arrest in Mississippi was unlawful
in that he was refused the right to contact an attorney, and officers in Mississippi hit him in the head
causing a concussion; (2) his guilty plea was coerced in that he was beaten by officers in Bollinger
County, and these officers withheld his diabetes medication and injected him with mind-altering
medication; (3) he was not properly arraigned; and (4) he was improperly sentenced as a repeat
offender. Petitioner also claimed that he was innocent of the crimes for which he pleaded guilty.
On October 27, 1995, the Honorable Lawrence O. Davis denied petitioner’s § 2254 petition,
holding that petitioner’s failure to file a Rule 24.035 motion defaulted his claims. Judge Davis found
that petitioner had not shown cause and prejudice or actual innocence to lift the procedural bar.
Judgement was entered against petitioner in this case on October 27, 1995.
Petitioner appealed the denial of his § 2254 habeas petition to the Eighth Circuit Court of
Appeals. In an en banc decision, the Eighth Circuit affirmed the denial of petitioner’s § 2254 habeas
petition. Weeks v. Bowersox, 119 F.3d 1342 (8th Cir. 1997). The Court of Appeals held that
petitioner had failed to present sufficient evidence of his actual innocence, and that mere allegations
that evidence existed was not enough. Id. at 1346. The Eighth Circuit also held that petitioner was
not entitled to a hearing to develop evidence of actual innocence. Id. Petitioner appealed that
decision to the United States Supreme Court. Petitioner filed a petition for writ of certiorari, which
was denied on January 26, 1997. Weeks v. Bowersox, 522 U.S. 1093 (1998).
On October 3, 2001, petitioner filed a post-conviction motion for forensic DNA testing in
the Circuit Court of Cape Girardeau County, Missouri. The motion was denied, and petitioner

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appealed. The Missouri Court of Appeals affirmed, holding petitioner was not entitled to DNA
testing after pleading guilty.
On August 3, 2004, the Missouri Supreme Court reversed. The Missouri Supreme Court held
that post-conviction DNA testing under Mo. Rev. Stat. § 547.035 was available to persons like
petitioner who had pleaded guilty. Weeks v. Missouri, 140 S.W.3d 39, 45 (Mo. banc. 2004).
Pursuant to a court order, the victim’s rape kit was submitted for testing. In a report dated
November 22, 2004, the Paternity Testing Corporation concluded that sperm collected from the
vaginal swab of the victim matched the DNA profile of petitioner. See Doc. 53, Ex. G.
On September 12, 2011, petitioner filed a motion with the Eighth Circuit Court of Appeals
requesting that the Eighth Circuit recall the mandate in Weeks v. Bowersox, 119 F.3d 1342 (8th Cir.
1997). The Court of Appeals denied petitioner’s motion.
On July 20, 2012, petitioner, who was represented by counsel at the time, filed a motion for
relief from final judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure in the
above-captioned cause of action.3 Petitioner argued that the judgment should be set aside because:
(1) his guilty plea was not freely and voluntarily given because crucial and exculpatory evidence
was withheld by the State in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) his plea was
not knowingly, voluntarily and intelligently entered because he was improperly and over-medicated
by jail staff; and (3) his plea was not knowingly, voluntarily and intelligently entered because he was
suffering from severe head trauma on the date of the guilty plea.

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The Honorable Lawrence O. Davis retired in 2001, and upon the filing of petitioner’s
motion for relief from final judgment, the case was assigned to the undersigned.
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On March 5, 2013, the undersigned denied petitioner’s motion for relief from final judgment.
The Court found that all three of plaintiff’s reasons for relief from final judgment were in fact
“claims” under Ward v. Norris, 577 F.3d 925, 932 (8th Cir. 2009) and, therefore, the motion should
be treated as a second or successive habeas petition and dismissed under 28 U.S.C. § 2244(b), which
limits petitioners from filing successive habeas petitioners in federal court. In the alternative, the
Court ruled that petitioner’s motion, which fell under Rule 60(b)(2), was time-barred under the oneyear statute of limitations. Petitioner appealed to the Eighth Circuit Court of Appeals, which denied
petitioner a certificate of appealability on September 3, 2013. Petitioner filed a petition for writ of
certiorari with the United States Supreme Court, which was denied on March 31, 2014.
In the motion presently at bar, petitioner has once again returned to this Court seeking relief
from final judgment pursuant to Rule 60(b). In his motion, petitioner argues that the Court must reopen his § 2254 habeas petition because the Court’s denial of his petition without an evidentiary
hearing was in violation of his constitutional due process rights. Petitioner also argues that the
Court’s judgment in this case was void because the state court’s judgment was void in that it lacked
authority and jurisdiction to enter a conviction and impose a life sentence upon petitioner for
forcible rape. The Court has reviewed petitioner’s motion and the documents he filed in support and
finds he is not entitled to the relief he requests.
II. Discussion
Rule 60(b) of the Federal Rules of Civil Procedure allows a party to seek relief from a final
judgment and request reopening a case, under a limited set of circumstances including fraud,

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mistake, and newly discovered evidence.4 A habeas petitioner may seek relief from final judgment
under Rule 60(b) in certain circumstances. “Rule 60(b), like the rest of the Rules of Civil Procedure,
applies in habeas corpus proceedings under 28 U.S.C. § 2254 only ‘to the extent that [it is] not
inconsistent with’ applicable federal statutory provisions and rules.” Gonzalez v. Crosby, 545 U.S.
524, 529 (2005) (citing 28 U.S.C. § 2254). Rule 60(b) applies to habeas proceedings to the extent
it is not inconsistent with the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Ward
v. Norris, 577 F.3d 925, 932 (8th Cir. 2009) (citing Gonzalez, 545 U.S. at 529).
The AEDPA limits petitioners from filing successive habeas petitioners in federal court. It
imposes three requirements on successive habeas petitions:

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Rule 60(b) provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and
upon such terms as are just, the court may relieve a party . . . from a final judgment,
order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud . . . , misrepresentation, or misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application; or
(6) any other reason justifying relief from the operation of the judgment.
Fed. R. Civ. P. 60(b).
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First, any claim that has already been adjudicated in a previous petition must be
dismissed. § 2244(b)(1). Second, any claim that has not already been adjudicated
must be dismissed unless it relies on either a new and retroactive rule of
constitutional law or new facts showing a high probability of actual innocence.
§ 2244(b)(2). Third, before the district court may accept a successive petition for
filing, the court of appeals must determine that it presents a claim not previously
raised that is sufficient to meet § 2244(b)(2)’s new-rule or actual-innocence
provisions. § 2244(b)(3).
Gonzalez, 545 U.S. at 529. Under Supreme Court precedent, a Rule 60(b) motion is a second or
successive habeas corpus application which falls under the restrictive requirements of § 2244 if the
motion contains a “claim.” Id. When a Rule 60(b) motion presents a “claim,” it must be treated
as a second or successive habeas petition under the AEDPA. Id.
According to the Eighth Circuit, “a claim is defined as an ‘asserted federal basis for relief
from a state court’s judgment of conviction’ or as an attack on the ‘federal court’s previous
resolution of the claim on the merits.’” Ward, 577 F.3d at 933 (citing Gonzalez, 545 U.S. at 530,
532). “On the merits” refers “to 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. No claim is presented
if the motion attacks “some defect in the integrity of the federal habeas proceedings.” Id.
“Likewise, a motion does not attack a federal court’s determination on the merits if it ‘merely 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. (quoting
Gonzalez, 545 U.S. at 532 n.4).
Here, petitioner asserts that the Court should grant him relief from final judgment because
the Court’s judgment was void. He argues the Court’s judgment was void because the underlying
state court’s judgment was void in that: (1) the state court was without jurisdiction to accept his
guilty plea to the rape charge; (2) he was not a prior or persistent offender at the time of his guilty
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plea; and (3) the state prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), in failing to
disclose exculpatory evidence.5 Based on Supreme Court precedent as interpreted by the Eighth
Circuit, the Court finds all three of these asserted grounds for relief from final judgment are
“claims.” Ward, 577 F.3d at 933. Each of these grounds either asserts a basis for relief from the
judgment of conviction, which does not rely on a new and retroactive rule of constitutional law, or
attacks this Court’s previous resolution of the claim. See Gonzalez, 545 U.S. at 532. As a result,
with respect to these three grounds, petitioner’s motion must be treated as a second or successive
petition under the AEDPA and dismissed for lack of jurisdiction. See Ward, 577 F.3d at 933; 28
U.S.C. § 2244(b)(4).
Petitioner also argues that he is entitled to relief from final judgment because he did not have
an evidentiary hearing in this case. He argues that this violated his constitutional right to due
process and, therefore, the Court’s judgment in this case was void. A Rule 60(b) motion is not
treated as second or successive under AEDPA, “if it does not raise a merits challenge to the
resolution of a claim in a prior habeas proceeding, but instead attacks ‘some defect in the integrity
of the federal habeas proceedings.’” United States v. Lee, 792 F.3d 1021, 1023 (8th Cir.), as
corrected (Dec. 14, 2015), reh’g denied, 811 F.3d 272 (8th Cir. 2015) (quoting Gonzalez, 545 U.S.
at 53).
The Eighth Circuit has not expressly addressed whether a motion for relief under Rule 60(b)
made on the basis that the district court did not hold an evidentiary hearing in the habeas

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It is not entirely clear, but petitioner also may be attempting to argue that he did not receive
effective assistance of trial counsel or a fair trial, “which consists of [the] right to speedy and public
trial by an impartial jury.” Doc. 78 at 2. Petitioner, however, pleaded guilty in state court. In any
event, these would be “claims” and subject to dismissal. Ward, 577 F.3d at 933.
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proceedings falls under the restrictive requirements of § 2244. There appears to be a split in
authority on the issue. Some courts have ruled that a Rule 60(b) motion challenging the denial of
an evidentiary hearing is not a “claim” within the meaning of Gonzalez, but rather it is an attack on
the integrity of the federal habeas proceeding. See, e.g., Mitchell v. Rees, 261 F. App’x 825, 829
(6th Cir. 2008) (“because [petitioner]’s Rule 60(b) motion challenges only the judgment on the
evidentiary hearing, it does not make a claim but rather asserts an error in the federal habeas
proceeding. Therefore, [petitioner]’s Rule 60(b) motion is not subject to the provisions of 28 U.S.C.
§ 2244(b).”). Other courts, including this Court, have concluded that a Rule 60(b) motion based on
the district court’s failure to conduct an evidentiary hearing prior to denying a habeas petition is not
a proper Rule 60(b) motion and constitutes a second or successive petition. See, e.g., United States
v. Washington, 653 F.3d 1057, 1064-65 (9th Cir. 2011) (petitioner’s argument that he was entitled
to Rule 60(b) relief because the district court declined to conduct an evidentiary hearing “does not
constitute an allegation of a defect in the integrity of the proceedings; rather, such arguments are
merely asking ‘for a second chance to have the merits determined favorably.’”) (quoting Gonzalez,
545 U.S. at 532 n.5.)); In re Lindsey, 582 F.3d 1173, 1175-76 (10th Cir. 2009); Blackwell v. United
States, No. 4:99-CV-1687 CAS, 2009 WL 3334895, at *4 (E.D. Mo. Oct. 14, 2009) (concluding that
petitioner’s challenge to the court’s failure to hold an evidentiary hearing on an ineffective
assistance of counsel claim was a second or successive petition because the court’s decision not to
hold a hearing was “inextricably” intertwined with the merits determination). In this case, however,
the Court need not make such a determination to dispose of petitioner’s motion.
First, the Eighth Circuit already determined that petitioner was not entitled to an evidentiary
hearing in this case. Weeks v. Bowersox, 119 F.3d 1342, 1346 (8th Cir. 1997). “Habeas petitions

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are typically decided on the factual record developed in the state trial court and, therefore, only in
the minority of cases are evidentiary hearings held.” Id. at 1354. Affirming this Court’s denial of
the habeas petition without an evidentiary hearing, the Eighth Circuit Court wrote:
[w]e reject Weeks’s argument that he is entitled to an evidentiary hearing in order
to allow him to make the showing that entitles him to the evidentiary hearing
contemplated by Schlup [v. Delo, 513 U.S. 298 (1995)]. We can find no statutory or
judicial authority for Weeks’s proposed prehearing hearing. Because such an
entitlement has support neither in the law nor in common sense, we decline to
fashion such an entitlement out of thin air. Rather, we choose to follow the holdings
of this Court in Bannister v. Delo, 100 F.3d 610 (8th Cir.1996), and Battle v. Delo,
64 F.3d 347 (8th Cir.1995), cert. denied, 517 U.S. 1235, 116 S. Ct. 1881, 135
L.Ed.2d 176 (1996).
Id. at 1353. Petitioner, therefore, cannot base his Rule 60(b) motion on the fact that he was denied
an evidentiary hearing, because the Eighth Circuit has already affirmed that it was not error to deny
petitioner’s request for an evidentiary hearing.
Second, petitioner’s motion is untimely. Petitioner brings his motion pursuant to Federal
Rule of Civil Procedure 60(b)(4) and (6). Under Rule 60(c), motions brought pursuant to these two
subsections must be made “within a reasonable time.” Fed. R. Civ. P. 60(c). The particular facts
of the case determine what amounts to “a reasonable time.” See United States v. Five Thousand
Dollars in U .S. Currency, 184 F.3d 958, 960 (8th Cir. 1999). Courts considering Rule 60(b)(4) and
(6) motions generally find that a delay of more than a few years is unreasonable. See, e.g.,
Middleton v. McDonald, 388 F.3d 614, 617 (8th Cir. 2004) (three years before filing motion to set
aside dismissal of suit under 42 U.S.C. § 1983 was unreasonable); Kellogg v. Strack, 269 F.3d 100,
104 (2d Cir. 2001) (motion filed twenty-six months after denial of petition under 28 U.S.C. § 2254
was untimely); Hopkins-Bey v. United States, No. 4:97-CV-958 ERW, 2011 WL 332724, at *1
(E.D. Mo. Jan. 31, 2011) (motion filed nine years after denial of petition under 28 U.S.C. § 2254 was

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untimely). The Court finds petitioner’s motion, which was filed twenty-one years after the entry of
judgment, was not made “within a reasonable time.” Fed. R. Civ. P. 60(c). This is especially true
because the basis for the motion – the fact that petitioner was denied an evidentiary hearing – would
have been readily apparent at the time judgment was entered.
III. Conclusion
This Court finds petitioner’s motion pursuant to Rule 60(b) must be dismissed for lack of
jurisdiction because he raises claims that amount to a second or successive habeas petition, and
petitioner has not obtained permission from the 8th Circuit Court of Appeals to maintain the instant
motion, as required by 28 U.S.C. § 2244(b). See Ward, 577 F.3d at 933. In the alternative, the
Court finds petitioner’s motion for relief pursuant to Rule 60(b) is time-barred.
Finally, the Court will not issue a certificate of appealability. There is no substantial
showing of the denial of a constitutional right, such that reasonable jurists would find the Court’s
assessment of the constitutional claims debatable, or that the issues presented were adequate to
deserve encouragement to proceed further, Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), or a
showing that reasonable jurists would find it debatable whether the Court’s procedural rulings are
correct. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
Accordingly,
IT IS HEREBY ORDERED that petitioner Rubin Weeks’s motion for leave to proceed in
forma pauperis is DENIED as moot. [Doc. 79]
IT IS FURTHER ORDERED that petitioner Rubin Weeks’s motion for appointment of
counsel is DENIED. [Doc. 80]

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IT IS FURTHER ORDERED that petitioner Rubin Weeks’s motion for relief from final
judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure is DISMISSED for lack
of jurisdiction. [Doc. 78]
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 30th day of March, 2017.

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