Vann v. Kemna

Filing 25

ORDER IT IS HEREBY ORDERED that petitioner Tony K. Vanns Motion for Relief From Judgment Pursuant to Rule 60(b)(6) (Doc.#24) is denied. IT IS FURTHER ORDERED that petitioners Motion for Leave to File Name of Superintendent as Acting (Doc. #23) is denied as moot. denying 23 Motion for Leave to ; denying 24 Motion for Relief Signed by Magistrate Judge Frederick R. Buckles on 11/21/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TONY K. VANN,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
JAY CASSADY,1
Respondent.

No.

4:00CV2016 FRB

MEMORANDUM AND ORDER
In

December

2000,

petitioner

Tony

K.

Vann

filed

a

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in
which

he

raised

six

claims

for

relief,

including

claims

of

ineffective assistance of trial counsel. In a Memorandum and Order
denying the claims raised in petitioner’s petition (filed March 10,
2004/Doc.

#16),

the

undersigned2

determined

that

two

of

petitioner’s claims of ineffective assistance of trial counsel were
procedurally

defaulted

ineffective

assistance

constitute

cause

for

and
of
his

that

petitioner’s

post-conviction
default

given

the

assertion

counsel
Supreme

did

of
not

Court’s

directive in Coleman v. Thompson, 501 U.S. 722, 752-55 (1991), that

1

Petitioner is currently incarcerated at the Jefferson City
Correctional Center (JCCC) in Jefferson City, Missouri. Because
Jay Cassady is Warden of JCCC, he is substituted as proper party
respondent in this habeas corpus action.
Rule 2(a), Rules
Governing Section 2254 Cases in the United States District Courts.
2

With the consent of the parties, the matter was assigned to
the undersigned United States Magistrate Judge for final
disposition. 28 U.S.C. § 636(c).

ineffective assistance of post-conviction counsel cannot constitute
such cause.

Petitioner has now filed a Motion for Relief From

Judgment Pursuant to Rule 60(b)(6) (filed September 13, 2013/Doc.
#24) arguing that the Supreme Court’s recent holding in Martinez v.
Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), permits claims of
ineffective of assistance of post-conviction counsel to constitute
cause for default and that, given this new and retroactive rule of
constitutional law, petitioner’s previous claims of ineffective
assistance of counsel should be reopened and reviewed on their
merits.

Contrary to petitioner’s assertion, however, Martinez did

not establish a new rule of constitutional law but instead was an
“equitable ruling.”

Martinez, 132 S. Ct. at 1319-20 (noting the

difference “between a constitutional ruling and the equitable
ruling of this case.”); Osborne v. Purkett, No. 03-653-CV-W-NKL,
2012 WL 5511676 (W.D. Mo. Nov. 14, 2012).
Because
constitutional

Martinez

law,

did

not

petitioner

set

cannot

forth
obtain

a

new

relief

rule
on

of
his

previously determined habeas claims through retroactive application
of its holding.

Osborne, 2012 WL 5511676, at *4.

Petitioner’s

Motion for Relief from Judgment should therefore be denied.

Accordingly,
IT IS HEREBY ORDERED that petitioner Tony K. Vann’s
Motion for Relief From Judgment Pursuant to Rule 60(b)(6) (Doc.

-2-

#24) is denied.
IT IS FURTHER ORDERED that petitioner’s Motion for Leave
to File Name of Superintendent as ‘Acting’ (Doc. #23) is denied as
moot.

UNITED STATES MAGISTRATE JUDGE

Dated this

21st

day of November, 2013.

-3-