Inta v. Dormire
MEMORANDUM AND ORDER TRANSFERRING ACTION TO COURT OF APPEALS: IT IS HEREBY ORDERED that the pro se motion of petitioner Seun Inta for relief under Fed. R. Civ. P. 60(b) (Doc. 39) is denied as moot. IT IS FURTHER ORDERED that the pro se motion o f petitioner Seun Inta for clarification (Doc. 58) is denied as moot. IT IS FURTHER ORDERED that the amended motion of petitioner Seun Inta for relief under Fed. R. Civ. P. 60(b) (Doc. 59) is transferred to the Eighth Circuit Court of Appeals in accordance with Boyd v. United States, 304 F.3d 813 (8th Cir. 2002). (cc: Beth Kirkland). Signed by Magistrate Judge David D. Noce on 5/28/13. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:03 CV 1654 DDN
MEMORANDUM AND ORDER
TRANSFERRING ACTION TO COURT OF APPEALS
This action is before the court on the motions of Seun Inta for relief under Fed. R.
Civ. P. 60(b). (Docs. 39, 58, 59.) The parties have consented to the exercise of plenary
authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). (Doc. 7.)
On January 10, 2001, petitioner Seun Inta pled guilty in the Circuit Court of
Jefferson County to one count each of second degree murder, armed criminal action, first
degree assault, and first degree burglary. (Doc. 8, Ex. B at 51.) The court sentenced him
to 30 years imprisonment for second degree murder, 20 years imprisonment for armed
criminal action, and 15 years imprisonment each for first degree burglary and first degree
assault. (Id. at 52.) The court ordered that the sentences for murder and armed criminal
action run consecutive to each other and that the sentences for burglary and assault run
concurrently with each other and with the sentences for murder and armed criminal
On June 25, 2001, petitioner filed a motion for post-conviction relief under Mo.
Sup. Ct. R. 24.035. (Id. at 7-8.) On April 10, 2002, following a hearing, the court denied
the motion. (Id. at 34-40.) Petitioner appealed the denial. (Id., Ex. C.) The Missouri
Court of Appeals affirmed. (Id., Ex. E.) Petitioner then moved for rehearing or transfer
to the Missouri Supreme Court, which was denied. (Id., Exs. F, G.)
On November 17, 2003, petitioner commenced this federal habeas action under 28
U.S.C. § 2244(d)(1), alleging that he received ineffective assistance of counsel and was
denied due process, because:
His trial counsel failed to pursue a possible self-defense theory and
investigate witnesses whom petitioner made known to her.
His guilty plea was not knowing and voluntary because he relied on
his trial counsel’s misrepresentation of the amount of time to be
served under the plea agreement.
On October 18, 2004, with leave of court, petitioner filed an amended federal
habeas petition, asserting the following additional grounds for relief:
Petitioner possessed meager English speaking or understanding
skills at the time of his guilty plea.
The interpreter misinterpreted petitioner during his trial counsel’s
Petitioner's appointed post-conviction relief counsel failed to include
in the amended post-conviction relief motion the grounds for relief
that petitioner had alleged in his pro se motion.
An assistant public defender who had not been originally involved in
the case and who advised petitioner to simply say only "Yes" at the
plea hearing represented petitioner at the guilty plea proceeding.
Petitioner was not able to effectively provide any information to his
Petitioner was unable to understand the consequences of a guilty
Petitioner believed that going to trial would result in an automatic
(Doc. 16 at 1.)
On July 20, 2005, this court found Grounds 1 and 2 without merit and Grounds 3
through 9 procedurally barred. (Doc. 19.) On July 26, 2005, petitioner filed a notice of
appeal to the Eighth Circuit. (Doc. 21.) On May 9, 2006, the Eighth Circuit dismissed
petitioner’s appeal. (Doc. 29.)
On November 7, 2012, petitioner filed a pro se motion in this court to request
relief under Fed. R. Civ. P. 60, although the record indicates that he attempted to do so
about a month earlier. (Docs. 32, 39.) On November 20, 2012, the court appointed
counsel for petitioner.
On December 3, 2012, the court appointed an
interpreter for the purpose of allowing appointed counsel to interview petitioner
regarding the Rule 60 motion. (Doc. 49.) On March 29, 2013, petitioner filed a pro se
motion for clarification, in which he seeks a hearing on the merits of his claims. (Doc.
58.) On April 24, 2013, petitioner filed an amended Rule 60 motion with the assistance
of appointed counsel. (Doc. 59.)
Because petitioner’s amended Rule 60 motion incorporates the pro se motions for
Rule 60(b) relief and for clarification, the court construes the amended Rule 60 motion as
including the substance of those motions. Accordingly, the court denies as moot the pro
se motions for Rule 60(b) relief and for clarification.
Respondent argues that petitioner’s Rule 60(b) motion is a successive habeas
petition under the Antiterrorism and Effective Death Penalty Act (AEDPA), 18 U.S.C. §
If a purported Rule 60(b) motion presents a habeas claim, then the court must
construe the motion as a successive habeas petition. Ward v. Norris, 577 F.3d 925, 933
(8th Cir. 2009). In this context, a claim is an asserted basis in federal law for relief from
a state court’s judgment or is an attack on the federal court’s previous resolution on the
merits. Id. However, a Rule 60(b) motion may validly attack the integrity of the federal
habeas proceedings or assert the erroneous nature of a ruling that precluded a
determination on the merits, including the denial of a habeas petition for failure to
exhaust, for procedural default, or due to the statute of limitations. Id.
The Supreme Court of the United States has stated that “claims” include
allegations of failures to assert a claim due to the neglect of a petitioner or counsel,
requests to present evidence in support of a previously denied claim, or contentions that a
change in substantive law affects a previously denied claim. Gonzalez v. Crosby, 545
U.S. 524, 531 (2005). To find otherwise would contravene the requirements of AEDPA
for successive habeas petitions. Id. at 531-32.
In the Rule 60(b) motion, petitioner states that he failed to request an evidentiary
hearing that would have produced evidence supporting Grounds 1 and 2, which the court
denied on the merits. He attributes this failure to his subpar understanding of the English
language and to his being without counsel and not having an interpreter. He further states
that, since the court dismissed his habeas petition, the Supreme Court of the United States
has issued opinions applicable to his case, including Missouri v. Frye, 132 S.Ct. 1399
(2012.) Petitioner further argues that the affidavit of his daughter constitutes evidence of
actual innocence sufficient to avoid any procedural bar for Grounds 3 through 9 and
requests the deposition of his daughter. Although the motion contains elements of both a
successive habeas petition and a Rule 60(b) motion, the court notes the concerns of the
Supreme Court and the Eighth Circuit regarding adherence to AEDPA procedure. See
Gonzalez, 545 U.S. at 531-32; Ward, 577 F.3d at 933. Accordingly, the court construes
the Rule 60(b) motion as an attack on this court’s prior resolution of petitioner’s grounds
on the merits, and, therefore, as a successive habeas petition.
The AEDPA requires petitioner Inta to obtain an authorization order from the
Eighth Circuit Court of Appeals as a prerequisite to filing a successive habeas petition
with this court. 28 U.S.C. § 2244(b)(3). The record does not contain such an order. The
Eighth Circuit has instructed that, in such instances, the court may choose to dismiss the
motion for failure to obtain authorization or transfer the motion to the Eighth Circuit.
Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002). Accordingly, the court
transfers petitioner’s motion to the Eighth Circuit.
For the reasons stated above,
IT IS HEREBY ORDERED that the pro se motion of petitioner Seun Inta for
relief under Fed. R. Civ. P. 60(b) (Doc. 39) is denied as moot.
IT IS FURTHER ORDERED that the pro se motion of petitioner Seun Inta for
clarification (Doc. 58) is denied as moot.
IT IS FURTHER ORDERED that the amended motion of petitioner Seun Inta
for relief under Fed. R. Civ. P. 60(b) (Doc. 59) is transferred to the Eighth Circuit Court
of Appeals in accordance with Boyd v. United States, 304 F.3d 813 (8th Cir. 2002).
/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on May 28, 2013.
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