Blackwell v. USA

Filing 98

MEMORANDUM AND ORDER:IT IS HEREBY ORDERED that Jeffrey T. Blackwells Motion for Relief from Judgment Pursuant to Federal Rules of Civil Procedure 60(b)(4) is DENIED in part and DISMISSED in part for lack of jurisdiction; the motion is DENIED to the extent it concerns movants claim under Apprendi, and DISMISSED for lack of jurisdiction as a second or successive habeas motion in all other respects. Doc. 86 IT IS FURTHER ORDERED that movant Blackwells Other Powers to Grant Relief from Judgme nt [Pursuant] to Federal Rule of Civil Procedure 60(d)(3) and Motion for Relief from Judgment Pursuant to Federal Rules of Civil Procedure 60(b)(4) are DISMISSED for lack of jurisdiction as a second or successive habeas motions. Docs. 87 , 88 IT IS FURTHER ORDERED that movant Blackwells Motion to Expedite is DENIED as moot. Doc. 97 . Signed by District Judge Charles A. Shaw on 1/30/2014. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JEFFREY T. BLACKWELL,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:99-CV-1687 CAS

MEMORANDUM AND ORDER
This closed matter under 28 U.S.C. § 2255 is before the Court on federal prisoner Jeffrey T.
Blackwell’s “Motion for Relief from Judgment Pursuant to Federal Rules of Civil Procedure
60(b)(4)” (Doc. 86), “Other Powers to Grant Relief from Judgment [Pursuant] to Federal Rule of
Civil Procedure 60(d)(3)” (Doc. 87), and “Motion for Relief from Judgment Pursuant to Federal
Rules of Civil Procedure 60(b)(4)” (Doc. 88).
These motions are, respectively, the sixth, seventh and eighth post-dismissal motions movant
has filed in this matter. Movant contends that none of these motions are barred as second or
successive because they seek to correct defects in movant’s original § 2255 federal habeas
proceeding. Movant has also filed a motion to expedite. The government was ordered to respond
to movant’s motions, but it responded to only one of movant’s three motions.
For the following reasons, the Court will deny movant’s first Rule 60(b)(4) motion with
respect to his claim under Apprendi v. New Jersey, 530 U.S. 466 (2000), and will dismiss the
remainder of movant’s first Rule 60(b)(4) motion, the second Rule 60(b)(4) motion, and the Rule
60(d)(3) motion for lack of jurisdiction, as second or successive habeas petitions for which movant

failed to obtain authorization from the Eighth Circuit Court of Appeals. The motion to expedite will
be denied as moot.
I. Procedural Background
On December 12, 1997, movant pleaded guilty to selling and distributing cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and to being a felon in possession of firearms
in violation of 18 U.S.C. § 922(g) and 924(a)(2).

Movant was sentenced to 295 months

imprisonment by the late Honorable George F. Gunn. United States v. Blackwell, 4:97-CR-116
GFG (E.D. Mo. Dec. 12, 1997). The United States Court of Appeals for the Eighth Circuit affirmed
the conviction and sentence. United States v. Blackwell, No. 98-1031, 163 F.3d 603, 1998 WL
703304 (8th Cir. Oct. 8, 1998) (Table) (unpublished per curiam).
Movant filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 on
October 28, 1999, in which he asserted five grounds of ineffective assistance of counsel. Movant
filed a motion for leave to amend his § 2255 motion on June 21, 2001, which was granted. The
Magistrate Judge to whom this case was referred issued a Report and Recommendation that
recommended the motion be denied in all respects. Movant filed objections to the Report and
Recommendation, which this Court overruled. The Court adopted the Report and Recommendation
following de novo review. See Order and Judgment of Mar. 28, 2003 (Docs. 29, 30). The Eighth
Circuit denied movant’s application for a certificate of appealability and dismissed the appeal.
Blackwell v. United States, No. 01-2226 (8th Cir. Feb. 20, 2004). The United States Supreme Court
denied movant’s petition for a writ of certiorari. Blackwell v. United States, No. 04-5182 (Oct. 4,
2004).
Movant subsequently filed three other motions for relief under 28 U.S.C. § 2255, Blackwell
v. United States, No. 4:05-CV-984 CDP (E.D. Mo. Aug. 23, 2005); Blackwell v. United States,
2

4:06-CV-1177 CDP (E.D. Mo. Sept. 19, 2006); and Blackwell v. United States of America, No.
4:07-CV-1864 CDP (E.D. Mo. Nov. 27, 2007), which this Court, Judge Perry presiding, construed
as second or successive § 2255 motions and transferred to the Eighth Circuit Court of Appeals
pursuant to 28 U.S.C. § 1631. The Eighth Circuit denied movant’s applications for authorization
to file successive habeas actions. See Blackwell v. United States, No. 05-3491 (8th Cir. Nov. 25,
2005); Blackwell v. United States, No. 06-3441 (8th Cir. Feb. 27, 2007); and Blackwell v. United
States, No. 07-3765 (8th Cir. Mar. 31, 2008).
On May 13, 2008, movant filed a “Motion Under Rule 15(c)(2) Relating Back to Petitioner’s
Original 2255 Motion” which the Court construed as a second or successive § 2255 motion and
denied. See Order of May 21, 2008 (Doc. 48). The Court also denied movant’s motion for
reconsideration of the Order of May 21, 2008. See Order of June 6, 2008 (Doc. 50).
On August 4, 2008, movant filed a motion pursuant to Rule 60(b)(6), Fed. R. Civ. P.,
concerning Ground Three of his original § 2255 motion. The Court denied the motion by
Memorandum and Order dated August 20, 2008 (Doc. 52), concluding that (1) the motion was
actually a second or successive habeas petition which movant had not obtained authorization to file,
Mem. and Order of Aug. 20, 2008 at 7; and (2) even if the motion was not a second or successive
habeas petition, it actually sought relief under Rule 60(b)(3) and was untimely. Id. The Eighth
Circuit Court of Appeals summarily affirmed on November 25, 2008, Blackwell v. United States,
No. 08-3282 (8th Cir. Nov. 25, 2008), and denied rehearing on January 21, 2009. Id. (8th Cir. Jan.
21, 2009).
On January 22, 2009, movant filed a motion under Federal Rules of Civil Procedure 60(b)(4)
and (5), and a motion for leave to supplement it with an Addendum adding claims under Federal
Rules of Civil Procedure 60(d)(1) and (3) on February 26, 2009. The Court granted leave to
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supplement and denied the motions by Memorandum and Order of October 14, 2009 (Doc. 73),
concluding that both the motion for relief under Rules 60(b)(4) and (5), and the motion for relief
under Rules 60(d)(1) and (3), were second or successive § 2255 motions for which movant did not
obtain prior authorization from the Eighth Circuit Court of Appeals. Movant filed a motion for
reconsideration, which the Court denied by Memorandum and Order of November 3, 2009 (Doc.
77). Movant appealed, and the Eighth Circuit Court of Appeals summarily affirmed. Blackwell v.
United States, No. 10-1873 (8th Cir. June 28, 2010). Movant subsequently filed the instant three
motions.
II. Discussion
A. Standard for Review of 60(b) Motion in Closed Habeas Proceeding
A federal prisoner may file a second or successive motion under § 2255 only after obtaining
authorization to do so from the appropriate United States Court of Appeals. 28 U.S.C. § 2255(h);
see also 28 U.S.C. § 2244(b)(3). The Eighth Circuit has directed that where a prisoner files a Rule
60(b) motion following the dismissal of a habeas petition, the district court should file the motion
and then conduct a brief initial inquiry to determine whether the allegations in the Rule 60(b) motion
in fact amount to a second or successive collateral attack under either 28 U.S.C. § 2255 or § 2254.
Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002). If the district court determines the Rule
60(b) motion is actually a second or successive habeas petition, it should dismiss the motion for
failure to obtain authorization from the Court of Appeals or, in its discretion, transfer the purported
Rule 60(b) motion to the Court of Appeals. Boyd, 304 F.3d at 814. “It 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 . . . § 2255 action by purporting to invoke some other procedure.” United States v.

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Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005) (per curiam) (citing United States v. Patton, 309 F.3d
1093 (8th Cir. 2002) (per curiam), and Boyd, 304 F.3d at 814).
The Supreme Court has held that a state prisoner’s Rule 60(b) motion challenging the denial
of federal habeas corpus relief that merely alleges a defect in the integrity of the habeas proceedings
and does not attack the merits of the decision to deny the petition or present new grounds for relief
from the state conviction is not a second or successive habeas petition subject to the restrictions on
such petitions set forth in the AEDPA. Gonzalez v. Crosby, 545 U.S. 524, 535-36 (2005) (Rule
60(b) motion challenging district court’s previous ruling on AEDPA statute of limitations was not
the equivalent of a successive habeas petition). The Eighth Circuit has explained the Gonzalez
decision in detail:
Federal Rule of Civil Procedure 60(b) allows a habeas petitioner to seek relief
from final judgment and to request the reopening of his case in certain
circumstances. Rule 60(b) applies to habeas proceedings to the extent it is not
inconsistent with AEDPA. Gonzalez, 545 U.S. at 529; see also 28 U.S.C. § 2254;
Fed. R. Civ. P. 81(a)(4). AEDPA imposes three requirements on second or
successive habeas petitions:
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 529-30. Rule 60(b) creates an exception to the finality of a
district court’s judgment in a habeas proceeding, so that “[i]f neither the motion itself
nor the federal judgment from which it seeks relief substantively addresses federal
grounds for setting aside the movant’s state conviction, allowing the motion to
proceed as denominated creates no inconsistency with the habeas statute or rules.”
Id. at 533.

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A Rule 60(b) motion is a second or successive habeas corpus application if
it contains a claim. For the purpose of determining whether the motion is a habeas
corpus application, 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.” 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. at 532
n.4. When a Rule 60(b) motion presents a claim, it must be treated as a second or
successive habeas petition under AEDPA.
No claim is presented if the motion attacks “some defect in the integrity of
the federal habeas proceedings.” Id. at 532. 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.
at n.4. This reasoning is illustrated in Gonzalez, in which the petitioner moved for
relief from judgment challenging the district court’s determination that his habeas
petition was time barred under AEDPA. Because the motion challenged only the
statute of limitations that applied to the habeas proceeding and did not assert a claim,
the Supreme Court held that it was not a second or successive habeas petition. Id.
at 535-36.
Ward v. Norris, 577 F.3d 925, 932-33 (8th Cir. 2009).
The Supreme Court limited its holding in Gonzalez to the application of Rule 60(b) in habeas
proceedings filed by state prisoners under 28 U.S.C. § 2254, 545 U.S. at 529 n.3, even though the
provisions of §§ 2254 and 2255 concerning second or successive motions are “similar.” Id. The
Eighth Circuit has applied the Gonzalez analysis to second or successive motions under § 2255,
however. See Ward, 577 F.3d at 933; United States v. Washington, 211 F. App’x 550, 550 (8th Cir.
2007) (unpublished per curiam); United States v. Moss, 174 F. App’x 358, 358 (8th Cir. 2006)
(unpublished per curiam).
B. Movant’s Grounds for Rule 60(b)(4) Relief
The Court will address each claim in the two Rule 60(b)(4) motions filed by movant.

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1. Document 86
In the motion under Rule 60(b)(4) filed as Document 86, movant asserts that the judgment
in this matter is void and he seeks to reopen the original § 2255 motion on the grounds that the Court
(1) failed to address issues raised in movant’s motion for leave to amend his original § 2255,
although leave to amend was granted; and (2) failed to address an issue contained in the original
§ 2255 motion, i.e., whether counsel was ineffective for advising movant that the government would
forego the use of his prior convictions for any sentencing enhancement purposes in exchange for
movant’s guilty plea. In this motion, movant also seeks to reopen his first Rule 60(b)(6) motion on
the basis that the Court’s ruling denying the motion as untimely in the Memorandum and Order of
August 20, 2008 (Doc. 52), which concluded that the motion actually asserted a claim of fraud under
Rule 60(b)(3), was erroneous.
a. Failure to Address Apprendi Argument
Movant argues that although he was granted leave to amend his § 2255 motion to assert a
claim under Apprendi v. New Jersey, 530 U.S. 466, the Magistrate Judge failed to address that
argument and this Court adopted the Magistrate Judge’s Report and Recommendation in its entirety
but did not mention movant’s argument contained in his Objections to the Report and
Recommendation concerning the Magistrate Judge’s failure to address the Apprendi argument.
A suit brought to rectify a district court’s failure to address a claim set forth in a habeas
petition “present[s] a ‘true’ Rule 60(b) claim” rather than a second or successive § 2255 motion.
Peach v. United States, 468 F.3d 1269, 1271 (10th Cir. 2006) (per curiam) (citing Spitznas v. Boone,
464 F.3d 1213, 1224-25 (10th Cir. 2006) (similar holding in § 2254 matter)); see also Schwamborn
v. United States, 507 F.Supp.2d 229, 240 (E.D.N.Y. 2007) (Rule 60(b) motion in § 2255 matter did
not run afoul of the AEDPA to the extent it simply sought reconsideration of the court’s order on
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the ground that the court failed to address one of the movant’s arguments). As a result, this aspect
of movant’s motion is properly treated as a Rule 60(b) motion and the Court will address it.
As a threshold matter, petitioner raised the issue of the Court’s failure to address the
Apprendi argument in his “Leave to File an Application to Obtain Certificate of Appealability and
Supportive Memorandum” (Doc. 36), which was before the Eighth Circuit Court of Appeals as part
of the record of this case on appeal. The Eighth Circuit denied movant a certificate of appealability,
see Blackwell v. United States, No. 03-3796 (8th Cir. Feb. 2, 2004), and issued its Mandate on April
9, 2004, and the Supreme Court denied movant’s petition for writ of certiorari. Blackwell v. United
States, No. 04-5182 (Oct. 4, 2004). Rule 60(b) cannot be used to ignore or reverse the mandate of
an appellate court, but the mandate does not prevent the district court from entertaining the merits
of such a motion. Jones v. United States, 255 F.3d 507, 511 (8th Cir. 2001). “All issues decided
by an appellate court become the law of the case. This rule extends not only to actual holdings but
also to all issues implicitly settled in prior rulings.” Id. at 510. The Eighth Circuit implicitly
rejected movant’s argument when it denied the certificate of appealability, and therefore Rule 60(b)
relief may not be available here.1
Assuming, without deciding, that movant’s Apprendi argument is not barred by the law of
the case doctrine and was raised within a reasonable time, the next question is whether the Court’s
failure to address the Apprendi argument renders its judgment void within the meaning of Rule
60(b)(4). “Rule 60(b)(4) provides that a court may relieve a party from a final judgment if it is void.
Fed. R. Civ. P. 60(b)(4).” Baldwin v. Credit Based Asset Servicing and Securitization, 516 F.3d

1

There is also an issue whether movant raised this argument within a reasonable time under
Rule 60(c)(1). As stated above, Document 86 is movant’s sixth post-judgment motion and was filed
on May 18, 2012. The judgment in this case was issued March 28, 2003 (Doc. 29).
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734, 737 (8th Cir. 2008). “A judgment is void if the rendering court lacked jurisdiction or acted in
a manner inconsistent with due process.” Id. (quoting Kessler v. Crichton, 221 F.3d 1342, 1342 (8th
Cir. 2000) (unpublished per curiam)).
The Court concludes that its failure to address movant’s Apprendi argument does not render
its judgment void. Movant has failed to demonstrate that the Court lacked subject matter jurisdiction
or in personam jurisdiction. Further, movant cannot demonstrate that the Court acted inconsistently
with due process with respect to its prior decision denying his § 2255 motion because Apprendi
offers him no relief.
Apprendi holds that, “Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. In his “Motion for Leave to Amend
the Petition Under 28 U.S.C. § 2255” filed on June 21, 2011, movant argued that Apprendi applied
to his case and was “virtually identical” to Ground V of his original petition. Movant asserted that
his claim under Apprendi
“relates back” to issue V of his original § 2255 petition. Issue V was an ineffective
assistance of counsel claim for the failure to properly challenge the drug quantities.
In summary, Petitioner argued that his trial counsel had independent tests performed
on the crack cocaine and the result of this test was a drug weight of 47.5964 grams.
Because counsel had this information he was ineffective for not challenging the
amount alleged in the indictment. Furthermore, he was ineffective for stipulating to
the 50 grams of crack. Although this was an ineffective [assistance] claim, it
nonetheless, is the same argument that Petitioner makes under Apprendi.
. . . . As stated above, the Apprendi claim and the ineffective [assistance] claim are
virtually identical and relate to the same conduct (50 grams of crack cocaine). The
amendment goes further to argue that drug amounts are elements of the offense,
under Apprendi, and that Petitioner is actually innocent of this element.
Mot. for Leave to Amend at 3-4 (Doc. 17).

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Movant’s assertion that he could raise an Apprendi claim in his § 2255 motion is foreclosed
by circuit precedent that was decided prior to the date movant filed the motion for leave to amend
his § 2255 to add an Apprendi claim. On June 11, 2011, the Eighth Circuit held that Apprendi was
not of watershed magnitude and could not be applied retroactively on collateral review.2 United
States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001). The Eighth Circuit has also held that section
2255 forecloses Apprendi claims in a second or successive § 2255 motion because the Supreme
Court has not made Apprendi retroactive to cases on collateral review. Rodgers v. United States,
229 F.3d 704, 705 (8th Cir. 2000) (per curiam). As a result, the Court did not act inconsistently with
due process when it failed to address movant’s Apprendi claim, and movant is not entitled to relief
pursuant to Rule 60(b)(4).
Movant also asserts that the Court’s judgment on the original § 2255 motion failed to address
the following issues contained in movant’s Motion for Leave to Amend, filed June 17, 2001:
(2)

Whether Petitioner’s counsel was ineffective for not challenging the amount
of drugs alleged in the indictment, see Motion to Amend at Pg. 4.

(3)

Whether Petitioner’s counsel was ineffective for having Petitioner stipulate
to the 50 grams of crack, see Motion to Amend at Pg. 4.

(4)

Petitioner’s Rule 11 violation issue, see Motion to amend at Pages 7 and 8,
as well as Petitioner’s Reply Brief at pages 13 and 14.

(5)

Petitioner’s Actual Innocence issue raised through out [sic] Petitioner’s
Motion to Amend, as well as Petitioner’s Reply Brief at page 13.
Mot. for Relief under Rule 60(b)(4) at 4 (Doc. 86).
Movant’s assertions are incorrect. The motion for leave to amend was based solely on
Apprendi and, as stated above, movant cannot obtain any relief under Apprendi on a collateral attack

2

A watershed rule implicates both the accuracy and fundamental fairness of criminal
proceedings. Teague v. Lane, 489 U.S. 288 (1989).
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or on a second or successive § 2255. Further, as quoted above, movant argued in the motion for
leave that his Apprendi argument was “virtually identical” to his ineffective assistance of counsel
claims in Ground V of the original § 2255 motion based on trial counsel’s failure to challenge the
amount of drugs in the indictment and the stipulation to the 50 grams of crack. The ineffective
assistance of counsel claims listed as (2) and (3) above were addressed in the Report and
Recommendation which this Court adopted. As a result, this aspect of movant’s Rule 60(b) motion
raises a “claim” as that term is defined by Gonzalez, as movant is challenging this Court’s previous
resolution of a claim on the merits. Therefore, this aspect of movant’s Rule 60(b) motion is a second
or successive habeas corpus application and must be dismissed.
As to points (4) and (5), the motion for leave to amend does not mention Rule 11 or articulate
a Rule 11 violation. Movant argued in the motion for leave to amend that under Apprendi, he did
not understand an element of the plea – i.e., the 50 gram drug quantity – and that his plea therefore
involuntary. As part of his Apprendi argument in the motion for leave, movant argued that he was
actually innocent because there were only 47.5964 grams of cocaine base, not 50 grams. Movant’s
arguments concerning the drug quantity were addressed in detail in the Report and Recommendation
and rejected, and the Magistrate Judge’s recommendation was adopted by this Court. As a result,
these points in movant’s Rule 60(b) motion raise a “claim” as that term is defined by Gonzalez,
because movant challenges this Court’s previous resolution of claims on the merits. Therefore, this
aspect of movant’s Rule 60(b) motion is a second or successive habeas corpus application and must
be dismissed.
b. Failure to Address Ineffective Assistance of Counsel Claim
Movant also asserts that the Court failed to address a ground from his original § 2255
motion, that counsel was ineffective for advising movant that the government would forego the use
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of movant’s prior convictions for any sentencing enhancement purpose, in exchange for movant’s
guilty plea. This concerns Ground III of the original motion. Contrary to movant’s assertion in the
Rule 60(b)(4) motion, Ground III was addressed in the Report and Recommendation at pages 14-15
and adopted by this Court. As a result, this point in movant’s Rule 60(b) motion raises a “claim”
as that term is defined by Gonzalez, because movant challenges this Court’s previous resolution of
his claims on the merits. Therefore, this aspect of movant’s Rule 60(b) motion is a second or
successive habeas corpus application and must be dismissed.
c. Request to Reopen Movant’s First Rule 60(b) Motion
Finally, movant seeks to reopen his first Rule 60(b)(6) motion, filed on August 1, 2008 and
denied by this Court on August 20, 2008, on the basis that the Order denying the motion is void
because the Court acted in a manner inconsistent with due process. Setting aside the significant
procedural question whether it is possible to “reopen” a Rule 60(b) motion by means of a Rule
60(b)(4) motion, this aspect of movant’s motion is entirely without merit.
The Court in denying movant’s first Rule 60(b)(6) motion stated as follows:
It is clear from the foregoing discussion of the nature of movant’s Rule 60(b)
motion that its basis is the alleged fraud and misconduct perpetrated on the Court by
the prosecutor. The substance of the motion is grounded in Rule 60(b)(3), which
provides that a court may relieve a party from a final judgment on the basis of “fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or misconduct
by an opposing party.” Rule 60(b)(3), Fed. R. Civ. P. Claims under Rule 60(b)(3)
are subject to a one-year limit after entry of the judgment at issue. Rule 60(c)(1),
Fed. R. Civ. P. The instant motion was filed more than five years after the judgment.
Subsection (b)(3) and subsection (b)(6) of Rule 60(b) are mutually exclusive.
See Middleton v. McDonald, 388 F.3d 614, 616-17 (8th Cir. 2004). A motion for
relief under Rule 60(b)(6) cannot be premised on a ground for relief enumerated in
subsection (b)(3) or any other subsection of the Rule. Liljeberg, 486 U.S. at 863 &
n.11; Klapprott v. United States, 335 U.S. 601, 613 (1949). “Subsection (6) is not
a permissible means by which to avoid the time limitation otherwise applicable to a
claim of fraud, misrepresentation or misconduct by the adverse party.” Middleton,
388 F.3d at 616; see also United States v. Dakota Cheese, Inc., 923 F.2d 576, 577
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(8th Cir. 1991) (affirming denial of Rule 60(b)(6) motion where motion was in effect
a Rule 60(b)(2) motion and outside the one-year limitations period).
The Court believes that the instant motion is most likely second or
successive. The fact that movant references allegedly newly discovered evidence,
i.e., Ms. Decker’s letter, indicates that the instant motion should be treated as
successive. See Gonzalez, 545 U.S. at 531, Sanders v. Norris, 529 F.3d 787, 789
(8th Cir. 2008). Further, the motion seeks ultimately to resurrect the denial of
movant’s earlier § 2255 motion by reasserting a prior claim, which also indicates that
it is second or successive. See Tyler v. Purkett, 413 F.3d 696, 700-01 (8th Cir.
2005).
Nonetheless, to the extent movant’s motion may be considered to assert a
defect in the integrity of the § 2255 proceedings as contemplated by Gonzalez v.
Crosby, 545 U.S. 524, 535-36 (2005), as opposed to being a second and successive
§ 2255 motion, it is untimely under Rule 60(c)(1) and should be denied on that basis.
Mem. and Order of Aug. 20, 2008 at 6-7. Thus, the Court’s ruling was that (1) the Rule 60(b)
motion was a second or successive § 2255 motion for which movant had not obtained permission
from the Eighth Circuit Court of Appeals to pursue, and (2) even if the motion was not second or
successive, it was time barred. Movant appeal this Order, and the Eighth Circuit summarily
affirmed.
Movant now contends that the Order of August 20, 2008 denying his Rule 60(b)(6) motion
as untimely is void under Rule 60(b)(4) because the Court acted in a manner inconsistent with due
process of law. Movant ignores the Court’s ruling that his prior motion was a second or successive
habeas petition and attacks only the additional holding that it would be time barred if it was not
second or successive.
Movant’s argument is that Court on its own motion should have construed movant’s Rule
60(b)(6) motion as one brought pursuant to Rule 60(d)(3), which does not have a time limitation,
because “Petitioner states that his first Rule 60(b) motion was grounded under Rule 60(d)(3) which
have [sic] no time limitation.” Mot. for Relief at 9 (Doc. 86). In support, movant cites Williams v.

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Dormire, 2010 WL 3270111 (E.D. Mo. Aug. 17, 2010), and argues that this Court’s decision in
Williams is inconsistent with its Order of August 20, 2008 in this case. Movant asserts that this
Court construed his Rule 60(b)(6) claim to be “the exact type of fraud upon the court, as cited in this
habeas Court’s opinion in Williams . . . which was governed by Rule 60(d)(3) and it’s [sic] savings
clause . . . .” Mot. for Relief at 8.
Movant’s argument fails. In Williams, the Court did not construe a Rule 60(b) motion filed
by the state prisoner petitioner as an independent action under Rule 60(d)(3). Williams, unlike the
instant Rule 60(b)(4) motion, was an “independent action for relief from judgment under Rule
60(d)(3) of the Federal Rules of Civil Procedure.” Id., 2009 WL 3270111, at *1. The fact that the
Court discussed the law relevant to Rule 60(d)(3) – after first discussing the similar provision of
Rule 60(b)(3) – in a case brought under Rule 60(d)(3) does not somehow render the Court’s decision
in Williams “inconsistent” with its decision in the Order of August 20, 2008. Further, in Williams,
this Court found that the petitioner’s claims did not “allege a fraud upon the Court that would entitle
him to relief in an action in equity under Rule 60(d)(3),” id. at *3, so movant’s assertion that his first
Rule 60(b)(6) motion asserted the same type of claim as in Williams does not aid him.
Finally, in Williams the Court held that the petitioner could not “evade the AEDPA’s
limitation on filing successive habeas corpus actions by titling this action as one falling under Rule
60(d)(3)”:
Rule 60 motions challenging the denial of habeas relief are subject to the restrictions
on second or successive habeas petitions if the prisoner is attempting to either raise
a new ground for relief or attack a federal court’s previous resolution of a claim on
the merits. Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005). Petitioner is
attempting to raise a new ground for relief in this action. Thus, petitioner’s claim is
subject to the restrictions on filing successive habeas petitions, and petitioner must
receive permission from the United States Court of Appeals for the Eighth Circuit
before he may bring such a claim in this Court. 28 U.S.C. § 2244(b)(3).

14

Williams, 2010 WL 3270111, at *3. Thus, even if it would have been correct for the Court to
construe movant’s Rule 60(b)(6) motion as an independent action under Rule 60(d)(3) -– which it
would not have been – the motion would still have been properly dismissed as a second or
successive § 2255 motion, as was the motion in Williams.
For these reasons, the Court did not act inconsistently with due process when it denied
movant’s first Rule 60(b)(6) motion for lack of jurisdiction as a second or successive § 2255 motion
on August 20, 2008, and movant is not entitled to relief pursuant to Rule 60(b)(4).
2. Document 88
In the second motion filed under Rule 60(b)(4), Document 88, movant asserts that the
judgment in this matter is void because the Court failed to apply the two-pronged standard of review
from Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52 (1985), to
Ground III in movant’s original § 2255 motion.3
The Magistrate Judge’s Report and Recommendation, which this Court adopted after de novo
review, discusses the legal standards applicable to ineffective assistance of counsel claims at length,
including citation to Strickland and Hill, prior to addressing movant’s five grounds of ineffective
assistance of counsel. See Report and Recommendation at 11-13 (Doc. 25). Movant concedes that
the Magistrate Judge applied Strickland and Hill to the other four grounds. See Mot. for Relief at
7 (Doc. 88). The fact that the Report and Recommendation did not specifically cite to Strickland

3

Although movant’s second Rule 60(b)(4) motion cites to and discusses Lafler v. Cooper,
132 S. Ct. 1376 (2012), movant states very clearly that he does not assert a claim under Lafler. See
Reply at 3 (“Petitioner is not seeking relief from judgment pursuant to the relatively recent Supreme
Court decision in Lafler,”), and at 4 (“Petitioner only utilized Lafler for that simple case law fact that
the court’s failure to utilize Strickland and Hill in the context of a guilty plea ineffective assistance
of counsel claim was contrary to clearly established federal habeas law.”). As a result, the Court
does not discuss Lafler.
15

or Hill during the discussion of Ground III does not mean that the Magistrate Judge did not apply
the correct legal standard to movant’s claim.
Disagreeing with the way a court ruled on a § 2255 motion is not the same as raising a
procedural irregularity in the resolution of the motion itself. It is clear that this Rule 60(b)(4) motion
presents “claims,” because it does not merely attack a “defect in the integrity of the federal habeas
proceedings.” See Gonzalez, 545 U.S. at 532. This motion urges this Court to reconsider matters
addressed in the denial of movant’s original § 2255 motion and necessarily leads “inextricably to
a merits-based attack on the disposition of a prior habeas petition.” Spitznas v. Boone, 464 F.3d
1213, 1215-16 (10th Cir. 2006); see Gonzalez, 545 U.S. at 530, 532; Ward, 577 F.3d at 933.
Because this Rule 60(b)(4) motion present claims, it must be treated as a second or successive
habeas petition under the AEDPA. See Ward, 577 F.3d at 933. As a result, the Court lacks
jurisdiction to address movant’s second Rule 60(b)(4) motion, and it will be dismissed for movant’s
failure to obtain prior authorization from the Eighth Circuit Court of Appeals.
C. Movant’s Motion for Relief from Judgment under Rule 60(d)(3)4
In this motion, movant seeks to reopen Ground IV of his original § 2255 motion to vacate
under Rule 60(d)(3),5 on the basis that the Magistrate Judge committed fraud upon the Court in the
Report and Recommendation when he “stated blatant fraudulent facts that this habeas Court adopted
as true,” specifically that movant’s motion to withdraw his guilty plea filed December 8, 1997 was
denied by the trial judge, and that the denial of the motion to withdraw the guilty plea was reviewed

4

As previously stated, this motion is titled, “Other Powers to Grant Relief From Judgment
Pursunat [sic] to Federal Rule of Civil Procedure 60(d)(3).”
5

Ground IV was titled: “Counsel’s Failure to Properly Communicate With Petitioner
Causing Delay In Filing Petitioner’s Motion to Withdraw Petitioner’s Guilty Plea Constitute’s [sic]
Ineffective Assistance of Counsel.” Mot. to Vacate at 5 (Doc. 1).
16

by the Eighth Circuit Court of Appeals. See Rule 60(d)(3) Motion at 4-5 (citing Report and
Recommendation at 15-16). Movant asserts that the there is no support in the sentencing transcript
for the Magistrate Judge’s factual finding that the motion to withdraw his plea was denied, that
movant’s counsel argued it, or that the sentencing court addressed it; and that “there cannot exist,
any facts to support the Mag. Judge’s findings that the Eighth Circuit Court of Appeals reviewed
the sentencing court’s denial of said motion to withdraw.” Id. at 5.6
The text of Rule 60(d) states:
(d) Other Powers to Grant Relief. This rule does not limit a court’s power to:
(1) entertain an independent action to relieve a party from a judgment, order,
or proceeding;
(2) grant relief under 28 U.S.C. § 1655 to a defendant who was not
personally notified of the action; or
(3) set aside a judgment for fraud on the court.
Rule 60(d), Fed. R. Civ. P.
The Supreme Court has stated that “an independent action should be available only to
prevent a grave miscarriage of justice.” United States v. Beggerly, 524 U.S. 38, 47 (1998). To

6

The transcript of the sentencing proceedings held in the underlying criminal case, United
States v. Blackwell, No. 4:97-CR-116 GFG (E.D. Mo.), reflects movant’s motion to withdraw his
plea and Judge Gunn’s denial of that motion. Sent. Tr. at 29, ll. 10-18 (Doc. 58 in No. 4:97-CR116). The Report and Recommendation discusses the sentencing proceedings in detail, with citation
to the transcript. See Report and Recommendation at 5-9. Judge Gunn then proceeded to sentence
movant. Sent. Tr. at 73.
The Court also notes that in denying movant’s direct criminal appeal, the Eighth Circuit
stated, “We reject counsel’s argument that the district court abused its discretion in refusing to allow
Blackwell to withdraw his guilty plea because Blackwell misunderstood the prison sentences he
faced. When the district court properly informs a defendant of the maximum statutory penalties, as
it did here, counsel’s mistaken estimation of a defendant’s sentence is not a fair and just reason to
withdraw a guilty plea and does not render the plea involuntary.” United States v. Blackwell, 163
F.3d 603, 1998 WL 703304, at *1 (8th Cir. 1998) (unpublished per curiam).
17

prevent the restrictions of Rule 60 from “be[ing] set at naught,” independent actions under Rule
60(d) must “be reserved for those cases of ‘injustices which, in certain instances, are deemed
sufficiently gross to demand a departure’ from rigid adherence to the doctrine of res judicata.” Id.
(quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944)). “Rule 60(d)
provides for extraordinary relief on a showing of exceptional circumstances.” Fox v. Brewer, 620
F.2d 177, 180 (8th Cir. 1980).
As a threshold matter, movant has not filed an independent action, but rather has filed a
motion in the § 2255 matter. Movant therefore does not invoke Rule 60(d)(3) and is not entitled to
relief under it. See Mem. and Order of Oct. 14, 2009 at 11-12 (citing Bailey v. City of Ridgeland,
Miss., 2008 WL 4793738, at *2 (S.D. Miss. Oct. 30, 2008)); Best v. United States, 2010 WL
3782160, at *2 (N.D. Ind. Sept. 22, 2010).
More importantly, even if movant had filed an independent action, “It 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 . . . § 2255 action by purporting to invoke some other procedure.” Lambros, 404 F.3d
at 1036 (cited cases omitted). This restriction is not limited to motions under 60(b), but rather
includes any motion that asserts a federal basis for relief from the judgment of conviction or attacks
the federal court’s previous resolution of the claim on the merits. See, e.g., Patton, 309 F.3d at 1094
(motion under Rule 12(b)(2), Federal Rules of Criminal Procedure); United States v. Noske, 235
F.3d 405, 406 (8th Cir. 2000) (per curiam) (writ of coram nobis); United States v. Lurie, 207 F.3d
1075, 1077 (8th Cir. 2000) (28 U.S.C. § 2241 motion); Williams v. Hopkins, 130 F.3d 333, 336 (8th
Cir. 1997) (42 U.S.C. § 1983 claim); Ruiz v. Norris, 104 F.3d 163, 164 (8th Cir. 1997) (motion to
recall mandate).

18

Numerous decisions, including this Court’s Williams decision, hold that a post-dismissal
motion under Rule 60(d) is a second or successive claim for relief under § 2255, for which the
movant must obtain permission from the court of appeals prior to filing in the district court. See
United States v. Cone, 525 F. App’x 823, 825 (10th Cir. 2013) (affirming district court’s treatment
of Rule 60(d)(3) motion as a second or successive habeas application under § 2255, and dismissal
of the same for failure to obtain authorization from court of appeals); Nugent v. United States, 255
F. App’x 526, 527 (D.C. Cir. 2007) (per curiam) (affirming district court’s treatment of Rule 60(d)
independent action as a second or successive application under § 2255, and dismissal of the same
for failure to obtain authorization from court of appeals); Gutierrez v. United States, 2013 WL
3380313, at **2-3 (D. Minn. July 8, 2013) (dismissing Rule 60(d)(3) motion as a second or
successive habeas petition filed without leave from the Eighth Circuit); Maye v. United States, 2010
WL 4279405, at **1-2 (M.D. Fla. Oct. 25, 2010) (dismissing for lack of jurisdiction an independent
action under Rule 60(d)(1) to reopen § 2255 motion to vacate, as a second or successive claim for
relief under § 2255); Best, 2010 WL 3782160, at *2 (dismissing motion under Rule 60(d)(1) for lack
of jurisdiction; construing motion as a second or successive claim for relief under § 2255); United
States v. Head, 2010 WL 2545857, at *1 (D. Minn. June 21, 2010) (treating motions under both Rule
60(b)(3) and 60(d)(3) as successive habeas motions requiring prior approval from court of appeals);
Williams, 2009 WL 3334895, at *7 (holding independent Rule 60(d)(3) action was second or
successive habeas claim for relief under § 2255, dismissing for failure to obtain authorization from
Eighth Circuit); Heffington v. United States, 2009 WL 2043012, at *4 (E.D. Cal. July 13, 2009)
(holding motion under Rule 60(d)(1) to reopen and reconsider the final judgment dismissing § 2255
motion was a second or successive claim for relief under § 2255; dismissing for lack of jurisdiction
where movant did not obtain permission from court of appeals to raise the claim); United States v.
19

Franklin, 2008 WL 4792168, at *3 (E.D. Pa. Oct. 31, 2008) (treating motions filed under Rule
60(d)(3) as second or successive habeas motions under § 2255, which required authorization from
court of appeals).
The Court finds that movant’s motion under Rule 60(d)(3) is a second or successive motion
under § 2255 because it asserts a federal basis for relief from the judgment of conviction and attacks
the Court’s previous resolution of the claim on the merits. As a result, this Court lacks jurisdiction
to address it, and movant must first obtain permission from the Eighth Circuit Court of Appeals
before the motion may be filed.
III. Conclusion
For the foregoing reasons, the Court finds that movant Jeffrey Blackwell’s “Motion for
Relief from Judgment Pursuant to Federal Rules of Civil Procedure 60(b)(4)” (Doc. 86) should be
denied with respect to his Apprendi argument, and dismissed as second or successive in all other
respects. The Court further finds that movant’s “Motion for Relief from Judgment Pursuant to
Federal Rules of Civil Procedure 60(b)(4)” (Doc. 88), and “Other Powers to Grant Relief from
Judgment [Pursuant] to Federal Rule of Civil Procedure 60(d)(3)” (Doc. 87), are second or
successive § 2255 motions. Because movant did not obtain prior authorization from the Eighth
Circuit Court of Appeals to file these second or successive motions, this Court must dismiss them
for lack of jurisdiction. See Boyd, 304 F.3d at 814.
The Court has expended an extraordinary amount of judicial resources addressing movant’s
eight post-dismissal motions in this action. While movant repeatedly argues in each post-Gonzalez
motion that he does not challenge any aspect of his conviction or sentence and only challenges
procedural rulings such that these are true Rule 60 motions, the discussion above (except as to the
Apprendi issue) and in prior orders reveals that movant in fact does in fact raise claims that
20

challenge his conviction and sentence. Movant must, therefore, follow the Court’s repeated
direction that he obtain prior permission from a panel of the Eighth Circuit Court of Appeals, as
required by 28 U.S.C. § 2255(h), prior to filing any new § 2255 motions, any further Rule 60(b)
motions in this matter, or any independent action under Rule 60(d). It is apparent that movant “does
not understand the limitations on § 2255 post-conviction relief, the standards for deciding claims
of ineffective assistance of counsel, and the principle that issues of law and fact, once finally
decided, may not be revisited.” Winters v. United States, 716 F.3d 1098, 1102-03 (8th Cir. 2013).
Accordingly,
IT IS HEREBY ORDERED that Jeffrey T. Blackwell’s “Motion for Relief from Judgment
Pursuant to Federal Rules of Civil Procedure 60(b)(4)” is DENIED in part and DISMISSED in
part for lack of jurisdiction; the motion is DENIED to the extent it concerns movant’s claim under
Apprendi, and DISMISSED for lack of jurisdiction as a second or successive habeas motion in all
other respects. [Doc. 86]
IT IS FURTHER ORDERED that movant Blackwell’s “Other Powers to Grant Relief from
Judgment [Pursuant] to Federal Rule of Civil Procedure 60(d)(3)” and “Motion for Relief from
Judgment Pursuant to Federal Rules of Civil Procedure 60(b)(4)” are DISMISSED for lack of
jurisdiction as a second or successive habeas motions. [Docs. 87, 88]
IT IS FURTHER ORDERED that movant Blackwell’s Motion to Expedite is DENIED as
moot. [Doc. 97]

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 30th day of January, 2014.
21