DeJournett v. Luebbers

Filing 39

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that movant's motion to re-open his previous habeas petition [Doc. # 25 ] is denied. IT IS FURTHERORDERED that movant's motion to appoint counsel [Doc. # 26 ] is denied as moot. IT IS FURTHER ORDERED that movant's motion to amend his original § 2254 petition for writ of habeas corpus [Doc. # 27 ] is denied as moot.. Signed by District Judge Carol E. Jackson on 1/9/14. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LANNIE DEJOURNETT,
Movant,
vs.
AL LUEBBERS,
Respondent.

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Case No. 4:01-CV-1341 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Lannie DeJournett, pursuant
to Rule 60(b)(6) of the Federal Rules of Civil Procedure, to reopen his habeas corpus
action. Movant also filed a motion to appoint counsel to represent him in this action,
and a motion to amend his habeas petition. Respondent has filed a response in
opposition, and the issues are fully briefed.
I. Background
Movant is currently incarcerated at the Potosi Correctional Center in Mineral
Point, Missouri. Following a jury trial in the Circuit Court of Stoddard County, movant
was found guilty of murder in the first degree (Count I) and armed criminal action
(Count II). The circuit court sentenced movant to life imprisonment without parole for
Count I and a concurrent ten-year sentence for Count II.

On April 2, 1998, the

Missouri Court of Appeals denied movant’s appeal and affirmed his conviction and
sentence. Resp. Exhs. E & F. On June 23, 1999, the trial court denied movant’s motion
for post-conviction relief and request for a hearing pursuant to Missouri Rule 29.15.
Resp. Exh. H, pp. 43-53. The decision was affirmed by the state appellate court. Resp.
Exhs. L & M.

On August 31, 2001, movant filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, asserting that he was denied effective assistance of trial counsel
and effective assistance of post-conviction counsel. [Doc. # 4]. Because movant had
not raised the claim of ineffective assistance of trial counsel in either the direct appeal
or in the post-conviction appeal, the court found that the claim was procedurally
defaulted. DeJournett v. Luebbers, No. 4:01-CV-1341-MLM, 12 (E.D. Mo. Jan 20,
2004). The court further concluded that movant had no right to effective assistance
of counsel in state court post-conviction relief proceedings. Id. On May 19, 2004, the
United States Court of Appeals for the Eighth Circuit denied movant’s application for
certificate of appealability and dismissed his appeal. [Doc. # 20].
II. Discussion
The specific reasons for which a court may relieve a party from a final judgment
are listed in Rule 60(b)(1)-(5). Subparagraph (6) provides that the court may take
such action for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). Here,
movant asserts that the decision of the United States Supreme Court in Martinez v.
Ryan, ___ U.S.___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), qualifies as “any other
reason” justifying relief from the earlier judgment. In Martinez, the Court held that
ineffective assistance of post-conviction counsel may constitute “cause” necessary to
excuse a procedural default. 132 S.Ct. at 1311. In light of the Martinez decision,
movant argues that this court should reconsider its previous ruling rejecting his claims
of ineffective assistance of counsel. Before addressing that argument, the court must
first address whether the movant’s invocation of Rule 60(b)(6) is consistent with the
Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244.
A. The AEDPA and Rule 60

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The AEDPA provides that “[a] claim presented in a second or successive habeas
corpus application under section 2254 that was presented in a prior application shall be
dismissed.” 28 U.S.C. § 2244(b)(1). Before a second or successive application may
be filed in the district court, the petitioner must make a prima facie showing that the
petition satisfies certain requirements, which the appropriate court of appeals must
consider before authorizing the petition. 28 U.S.C. § 2244(b)(3). While Fed.R.Civ.P.
Rule 60(b) allows a habeas petitioner to seek relief from final judgment and request
reopening of a case, the rule only applies to habeas proceedings to the extent it is not
inconsistent with AEDPA. Gonzalez v. Crosby, 545 U.S. 524, 529 (2005); Ward v.
Norris, 577 F.3d 925, 932 (8th Cir. 2009). Thus, if the court finds movant’s Rule 60(b)
motion to be a second or successive habeas petition, the court must dismiss it for
failure to obtain authorization from the court of appeals, or may alternatively transfer
the motion to the court of appeals. United States v. Boyd, 304 F.3d 813, 814 (8th Cir.
2002).
A Rule 60(b) motion is considered a second or successive habeas corpus petition
if it contains a “claim.” Ward, 577 F.3d at 933. The Supreme Court has held that a
Rule 60(b) motion contains a habeas corpus “claim” when the motion attacks the
substance of the federal court’s resolution of a claim on the merits. Gonzalez, 545 U.S.
at 532. However, a Rule 60(b) motion does not contain a habeas claim when it instead
attacks a defect in the integrity of the federal habeas proceedings. Id. Furthermore,
a Rule 60(b) motion does not attack a federal court’s resolution of a habeas claim when
a previous ruling which precluded a merits determination was in error, such as a denial
due to failure to exhaust, procedural default, or statute-of-limitations bar. Ward, 577
F.3d at 933.

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In the instant Rule 60(b) motion, movant challenges the court’s previous
determination that his ineffective assistance of trial counsel claims in grounds eight
through sixteen of his habeas petition were procedurally defaulted. There was no
determination of the claims on the merits. Thus, to the extent movant seeks relief from
that determination, his Rule 60(b) motion is not a successive habeas petition. Adams
v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012). Instead, his challenge to the court’s
previous ruling is a claim of defect in the previous habeas proceedings, specifically that
the preclusion of a merits determination due to procedural default was in error.
Gonzalez, 545 U.S. at 532; Ward, 577 F.3d at 933. Thus, the court may consider
grounds eight through sixteen in the context of Rule 60(b).
The court reaches a different conclusion with respect to movant’s request for
reconsideration of his claim of ineffective assistance of post-conviction counsel in
ground seventeen. Previously, the court adjudicated the claim in ground seventeen on
the merits, concluding that movant had no right to effective assistance of counsel in
state court post-conviction relief proceedings. DeJournett v. Luebbers, 4:01-CV-1341CEJ [Doc. # 13]. Reconsideration of ground seventeen thus attacks the substance of
the federal court’s resolution on the merits. Gonzalez, 545 U.S. at 532. Therefore, the
movant’s Rule 60(b) motion must be construed as a successive petition to the extent
he seeks reconsideration of the ruling on ground seventeen. Barnett v. Roper, 2013
WL 1721205, at *7 (E.D. Mo. April 22, 2013). Because movant has not obtained
authorization from the Eighth Circuit to assert this claim in a successive petition, the
court cannot consider it in the context of Rule 60(b). Boyd, 304 F.3d at 814.
Furthermore, this independent claim of ineffective assistance of post-conviction
counsel is wholly without merit.

Movant urges the Court to consider effective

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assistance of post-conviction counsel as a constitutional right under the Fourteenth
Amendment and in light of the Supreme Court’s decision in Martinez. [Doc. #25, pp.
4-5]. However, the Supreme Court qualified that decision as an equitable ruling rather
than a constitutional one. Martinez, 132 S.Ct. at 1319-20. The decision does not
change the ruling in Coleman that there is no constitutional right to an attorney in state
post-conviction proceedings, and thus a petitioner cannot claim ineffective assistance
of counsel in such proceedings. Coleman v. Thompson, 501 U.S. 722, 752 (1991); see
Martinez,132 S.Ct. at 1320 (concluding that “[T]he rule of Coleman governs in all but
the limited circumstances recognized here”). Accordingly, the Court will not grant Rule
60(b) relief for ground seventeen.
The Court will now address whether movant is entitled to Rule 60(b) relief
pertaining to grounds eight through sixteen alleging ineffective assistance of trial
counsel.
B. Reconsideration after Martinez
Movant requests reconsideration of grounds eight through sixteen due to the
Martinez decision. He specifically asserts that, because the Supreme Court in Martinez
held that ineffective assistance of post-conviction counsel may be cause for procedural
default, his claims regarding ineffective assistance of trial counsel must then be
reconsidered. [Doc. # 25].
In certain circumstances, Rule 60(b)(6) allows a habeas petitioner to seek relief
from final judgment and to request the reopening of his case. Ward v. Norris, 577 F.3d
925, 932 (8th Cir. 2009). Rule 60(b)(6) provides that a court may relieve a party from
a final judgment due to “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6).
The Supreme Court has interpreted the “any other reason” language to mean that a

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movant seeking relief under Rule 60(b)(6) must show “extraordinary circumstances”
justifying the reopening of final judgment. Gonzalez v. Crosby, 545 U.S. 524, 535
(2005). However, such circumstances rarely occur in the habeas context. Id. Movant
asserts that the Martinez decision meets this extraordinary circumstances requirement
to obtain Rule 60(b) relief from his previous § 2254 judgment. [Doc. # 25, p. 3].
The Supreme Court has held that a change in decisional law does not constitute
extraordinary circumstances to warrant Rule 60(b) relief, and the same applies here.
Gonzalez, 545 U.S. at 536-37 (concerning the statute of limitations under AEDPA). The
narrow exception to Coleman created in Martinez does not justify intrusion into the
finality of movant’s former § 2254 judgment. Adams v. Thaler, 679 F.3d 312, 320 (5th
Cir. 2012); see Watkins v. Lundell, 169 F.3d 540, 544 (8th Cir. 1999) (concluding that
exceptional circumstances must justify intrusion into the sanctity of a final judgment).
This analysis may seem inapposite to that conducted in Barnett v. Roper, 2013 WL
1721205, at * 14 (E.D. Mo. April 22, 2013). In that case, another court in this district
considered a variety of factors when assessing whether the Martinez decision
constitutes exceptional circumstances, such as: the nature of the intervening law, the
delay between final judgment and the Rule 60(b) motion, and the degree of connection
with Martinez. However, the court undertook a more equitable consideration in that
case given its capital nature which required a greater need for reliability, consistency
and fairness. Id. at * 15-16. Those are not the circumstances presented here as the
present case is not capital in nature; therefore such multiple tiers of review is not
required.

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As the Martinez decision only presents a narrow and equitable exception to
Coleman, that ruling does not constitute extraordinary circumstances to warrant Rule
60(b) relief. Martinez, 132 S.Ct. at 1319-20.
III. Conclusion
For the foregoing reasons, the Court concludes that movant has not sufficiently
demonstrated the extraordinary circumstances that justify reopening his previous
habeas case. Additionally, the Court finds that movant has not made a substantial
showing of the denial of a constitutional right. See 28 U.S.C. § 2253.

Therefore no

certificate of appealability will be issued.
Accordingly,
IT IS HEREBY ORDERED that movant’s motion to re-open his previous habeas
petition [Doc. # 25] is denied.
IT IS FURTHER ORDERED that movant’s motion to appoint counsel [Doc. # 26]
is denied as moot.
IT IS FURTHER ORDERED that movant’s motion to amend his original § 2254
petition for writ of habeas corpus [Doc. # 27] is denied as moot.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 9th day of January, 2014.

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