Foster v. Kemna

Filing 153

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's motion for relief from judgment under Fed. R. Civ. P. 60(b)(6) (Doc. 152) is DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED, because petitioner has made no substantial showing that he has been deprived of a constitutional right. 28 U.S.C. § 2253(c). Signed by Magistrate Judge David D. Noce on 6/9/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DANIEL W. FOSTER,
Petitioner,
v.
MICHAEL KEMNA,
Respondent.

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No. 4:98 CV 899 DDN

MEMORANDUM AND ORDER
This matter is before the court on petitioner Daniel W. Foster’s motion for relief
from judgment under Fed. R. Civ. P. 60(b)(6). (Doc. 152). In effect, this is a motion for
reconsideration of this court’s dismissal of his petition for a writ of habeas corpus. The
motion is denied.
Petitioner filed his § 2254 petition for habeas corpus on May 22, 1998. (Doc. 1).
This court dismissed the petition with prejudice on July 25, 2001. (Doc. 91). Petitioner
appealed the dismissal and the appeal was denied on February 27, 2002. (Doc. 113).
Petitioner has filed numerous motions for reconsideration or other relief since that time:
in July 2002 (Doc. 114), in August 2006 (Doc. 116), in May 2011 (Doc. 118), and the
instant motion for reconsideration, filed June 5, 2017. (Doc. 152).
Petitioner’s motion contains no allegation that would show he is entitled to relief
under Fed. R. Civ. P. 60(b) from the order dismissing the habeas petition. Petitioner
argues that this court erred in reviewing the facts de novo and in stating that he had no
right to counsel for his post-conviction motions. A review of this court’s order shows
that this court deferred to the state court’s fact findings and did not make de novo fact
findings. (Doc. 91). A review of Supreme Court precedent shows that a state court’s
finding that a defendant has no right to counsel for post-trial motions is not contrary to
federal law. Marshall v. Rodgers, 133 S. Ct. 1446, 1450, 185 L. Ed. 2d 540 (2013).

Moreover, this court reasoned that even if there were such a right and counsel’s failure
violated that right, there was no prejudice to petitioner because he filed a pro se motion
for new trial.
Petitioner has not demonstrated that the court erred in dismissing this case, and the
court dismissed this case more than fifteen years ago. As a result, the motion for
reconsideration is without merit.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for relief from judgment
under Fed. R. Civ. P. 60(b)(6) (Doc. 152) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED,
because petitioner has made no substantial showing that he has been deprived of a
constitutional right. 28 U.S.C. § 2253(c).

/s/ David D. Noce
k
UNITED STATES MAGISTRATE JUDGE

Signed on June 9, 2017.

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