Bell v. Bowersox

Filing 66

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that petitioner's motion for relief from judgment under Rule 60(b)(6) [ECF No. 65 ] is DENIED with prejudice. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge E. Richard Webber on 10/27/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETH BELL,

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Petitioner,
v.
MICHAEL BOWERSOX,
Respondent,

No. 4:97CV00324 ERW

MEMORANDUM AND ORDER
Petitioner has filed a motion for relief from judgment under Rule 60(b)(6) of the Federal
Rules of Civil Procedure. Petitioner does not claim any error with the Court’s disposition of his
petition for writ of habeas corpus, which was denied on March 27, 2007. Instead, petitioner
states that he is challenging the constitutionality of 28 U.S.C. § 2254(i), which states, “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.”
Petitioner seeks a declaratory judgment that § 2254(i) is unconstitutional so that he can litigate
new habeas claims in this Court. Specifically, petitioner proposes to bring new claims of trial
court error, prosecutorial misconduct, ineffective assistance of trial counsel, and ineffective
assistance of postconviction counsel.
A Rule 60(b) motion by a prisoner that asserts a federal basis for relief from a state
court’s judgment of conviction must comply with the second or successive restrictions.
Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). That is, if the motion’s factual predicate deals
primarily with the constitutionality of the underlying state conviction or sentence, it should be
construed as a second or successive habeas petition, regardless of the label the prisoner attaches

to the motion.

In this case, petitioner is attempting to bring new claims challenging the

constitutionality of his conviction. Therefore, it is properly construed as a second or successive
petition under 28 U.S.C. § 2244(b).
Before bringing a successive habeas petition in this Court, petitioner must first obtain
leave from the Court of Appeals. 28 U.S.C. ' 2244(b)(3)(A). Because he does not have the
requisite leave, the Court will deny the motion.
Alternatively, even if the motion were properly characterized as coming under Rule
60(b), the Court would still deny it. Under Rule 60(c)(1), a Rule 60 motion must be filed “within
a reasonable time.”

The underlying petition was dismissed more than seven years ago.

Therefore, the instant motion has not been made in a reasonable time.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for relief from judgment under
Rule 60(b)(6) [ECF No. 65] is DENIED with prejudice.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
So Ordered this 27th day of October, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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