Holder v. USA

Filing 145

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that United States' Motion to Dismiss Motion for Order Granting Access to Examine and Test Ballistics Evidence [ECF No. 137 ] is GRANTED. Movant Norris Holder, Jr.'s Notice of Changed Economic Circumstances and Motion to Stay Order of Restitution [ECF No. 135 ] is GRANTED, in part, and DENIED, in part. The amount to be taken from Holder's prison account is limited to $30.00 per month with no less than $450 .00 remaining in Holders account at any time. Movant Norris Holder, Jr.'s Motion for Order Granting Access to Examine and Test Ballistics Evidence [ECF No. 128 ] is DENIED. Movant Norris Holder, Jr.'s Motion to Amend Motion for Order Granting Access to Examine and Test Ballistics Evidence [ECF No. 132 ] is DENIED. Signed by District Judge E. Richard Webber on 5/19/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NORRIS G. HOLDER, JR.,
Plaintiff(s),
vs.
UNITED STATES OF AMERICA,
Defendant(s).

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) Case No. 4:03CV00923 ERW
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MEMORANDUM AND ORDER
This matter comes before the Court on the United States Motion to Dismiss Motion for
Order Granting Access to Examine and Test Ballistics Evidence [ECF No. 137], Movant Norris
Holder, Jr.’s Notice of Changed Economic Circumstances and Motion to Stay Order of Restitution
[ECF No. 135], Movant Norris Holder, Jr.’s Motion for Order Granting Access to Examine and
Test Ballistics Evidence [ECF No. 128], and Movant Norris Holder, Jr.’s Motion to Amend
Motion for Order Granting Access to Examine and Test Ballistics Evidence [ECF No. 132].
In 1998, Movant Norris G. Holder, Jr. (“Holder”) was convicted and sentenced to death for
robbing a bank and killing a bank security guard. In 2003, Holder filed a motion pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct his sentence, which was denied by this Court. Holder
then moved, pursuant to Federal Rule of Civil Procedure 59(e), to alter or amend this Court’s
judgment, which was also denied. The denial of Holder’s Rule 59(e) motion was affirmed by the
Eighth Circuit Court of Appeals.
Presently before this Court is Holder’s Motion for Order Granting Access to Examine and
Test Ballistics Evidence [ECF No. 128], and the accompanying Motion to Amend the original
Motion [ECF No. 132]. In his Motion, Holder asserts he is considering the possibility of seeking
executive clemency from the President of the United States. To do so, he believes he needs to have
the ballistics evidence, used in his criminal trial, tested by an independent expert. According to
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Holder, an important issue in his case was whether he fired his weapon during the bank robbery.
Holder states at trial, the Government presented evidence from a ballistics expert who testified at
least two of the shots fired could have come from Holder’s weapon. Holder testified he never fired
his weapon, but trial counsel did not, nor did post-conviction counsel, hire a ballistics expert or
seek to have the evidence independently tested. Holder now asks the Court to order the
Government to grant him access to the evidence to have it tested.
The Government filed a Motion to Dismiss Holder’s Motion for lack of jurisdiction. The
Government argues before this Court can consider Holder’s motion, which is a second or
successive § 2255 motion, it must be certified by a panel of the Eighth Circuit Court of Appeals,
which Holder has not done.
The Court agrees with the Government. This Court does not have the power to grant
Holder’s motion. Holder’s motion should be brought as either a second or successive § 2255
motion, which must be certified by the Eighth Circuit before this Court can consider it, or as a civil
action under 42 U.S.C. § 1983. 28 U.S.C. § 2255; see also Durr v. Cordray, 602 F.3d 731, 736 (6th
Cir. 2010) (discussing the circuit split on whether a request for access to evidence for testing
should be brought pursuant to § 1983 or a habeas petition). Filing the motion in Holder’s § 2255
case, which has been denied by this Court and affirmed by the Eighth Circuit, is not proper and the
Court lacks the ability to grant Holder’s request in this case.
Holder asserted at oral argument on his motion, he could file a Rule 60(b) motion in this
case, if the evidence shows he did not fire his weapon, pursuant to Martinez v. Ryan, 132 S. Ct.
1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013). However, Martinez, and Trevino are
inapplicable here. Martinez created a narrow exception to a procedural default when a federal
district court is reviewing a state court decision under 28 U.S.C. § 2254. Lee, 792 F.3d at 1024.
Under Martinez, “state collateral counsel’s ineffectiveness in failing to raise a viable claim of
ineffective assistance of by trial counsel can serve as cause to overcome the procedural default. Id.
If prejudice can also be shown, then the procedural default may be excused and the merits of the
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claim can be decided by the federal district court. Id. Trevino further extended this exception to
“cover state review processes which make it virtually impossible to present a claim of improper
assistance of trial counsel on direct appeal.” Id. Both cases involve a federal district court’s review
of a state court decision in a § 2254 matter.
Here, Holder is suggesting the same rule should be applied to a review of claims not
properly raised in a federal habeas proceeding under § 2255. Holder cited to United States v. Lee,
792 F.3d 1021 (8th Cir. 2015) in support of this proposition. However, Lee does not hold as Holder
suggests. 792 F.3d at 1024. In Lee, the Eighth Circuit declined to expand Martinez and Trevino to
claims not adequately raised in an initial § 2255 proceeding. Id. Lee argued for an extension of
Martinez and Trevino, and the Eighth Circuit stated his arguments failed. Id. Therefore, this Court
will also decline to extend Martinez and Trevino to cover claims not adequately raised in an initial
§ 2255 proceeding. In conclusion, Holder has provided no basis for the Court’s authority to grant
his motion.
In addition to his motion to gain access to ballistics evidence, Holder also filed a Notice of
Changed Economic Circumstances and Motion to Stay Order of Restitution [ECF No. 135].
Holder asserts he has paid $54,405.00 of his restitution, but his restitution obligation imposes a
significant hardship on him and those who provide support to him, because he is unable to obtain
employment in prison as a death row prisoner. Holder requests the restitution order be stayed until
he can gain employment in prison.
For the Court to do as Holder asks would essentially nullify Holder’s restitution obligation.
Therefore, the Court will not stay the order of restitution. However, the Court will limit the amount
which can be taken each month from Holder’s prison account to $30.00 per month with no less
than $450.00 remaining in Holder’s account at any time.
Accordingly,
IT IS HEREBY ORDERED that United States Motion to Dismiss Motion for Order
Granting Access to Examine and Test Ballistics Evidence [ECF No. 137] is GRANTED.
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Movant Norris Holder, Jr.’s Notice of Changed Economic Circumstances and Motion to
Stay Order of Restitution [ECF No. 135] is GRANTED, in part, and DENIED, in part. The
amount to be taken from Holder’s prison account is limited to $30.00 per month with no less than
$450.00 remaining in Holder’s account at any time.
Movant Norris Holder, Jr.’s Motion for Order Granting Access to Examine and Test
Ballistics Evidence [ECF No. 128] is DENIED.
Movant Norris Holder, Jr.’s Motion to Amend Motion for Order Granting Access to
Examine and Test Ballistics Evidence [ECF No. 132] is DENIED.
So Ordered this 19th day of May, 2016.

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E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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