Rollen v. Steele

Filing 60

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk of Court shall remove the motion for relief from judgment [Doc. # 59 ] from the instant case, and file it as a new case with a new case number. Signed by District Judge Carol E. Jackson on 4/2/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAUL ROLLEN,
Movant,
vs.
TROY STEELE,
Respondent.

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Case No. 4:06-CV-1114 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Paul Rollen, pursuant to Rule
60(b)(6) of the Federal Rules of Civil Procedure, for relief from judgment. Respondent
has not filed a response in opposition, and the time allotted to do so has expired.
I.

Background

Movant is currently incarcerated at Jefferson City Correctional Center in
Jefferson City, Missouri. On June 27, 2002, a jury convicted movant of robbery in the
first degree, three counts of armed criminal action, and two counts of murder in the
second degree. Movant was sentenced to six consecutive life terms of imprisonment.
On December 2, 2003, the Missouri Court of Appeals affirmed movant’s convictions and
sentences. Movant thereafter filed a motion for state post-conviction relief, which was
denied, and that denial was affirmed by the Missouri Court of Appeals on February 14,
2006.
On January 25, 2007, movant filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, which he later amended to assert the following grounds
for relief: (1) that he was denied due process because his convictions relating to the
death of an unborn child were contrary to clearly established federal law; (2) that trial
counsel was ineffective in failing to timely object to the trial court’s failure to compel

a co-defendant, who had asserted his privilege against self-incrimination, to testify; (3)
that appellate counsel was ineffective in failing to raise on direct appeal the trial court’s
denial of petitioner’s right to cross-examine a witness against him; (4) that appellate
counsel was ineffective in failing to raise on direct appeal that the prosecutor misled
the jury during closing arguments; and (5) that trial counsel was ineffective in failing
to challenge the admission of unsworn statements made by petitioner, while the
unsworn statements of petitioner’s co-defendant were excluded.
The Court adopted the report and recommendation of a magistrate judge and
denied the petition, rejecting movant’s first four claims on the merits, and finding the
fifth to be procedurally defaulted. Rollen v. Dwyer, No. 4:06-CV-1114 (CEJ), 2007 WL
2199676, at *6 (E.D. Mo. July 27, 2007). On February 28, 2008, the United States
Court of Appeals for the Eighth Circuit denied movant’s application for a certificate of
appealability and dismissed his appeal. [Doc. #55].
II.

Discussion

The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244,
imposes three requirements on a second or successive habeas petition:
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 v. Crosby, 545 U.S. 524, 529-30 (2005). While Rule 60(b) allows a habeas
petitioner to seek relief from final judgment and request reopening of his case, the rule
only applies to the extent that it is consistent with the AEDPA. Id. at 529. Therefore,

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if the Court determines 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
Eighth Circuit Court of Appeals, or alternatively transfer the motion to the Eighth
Circuit. 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 v. Norris, 577 F.3d 925, 933 (8th Cir. 2009). A Rule
60(b) motion contains a claim if it “seeks to add a new ground for relief” or “attacks
the federal court’s previous resolution of a claim on the merits.” Gonzalez, 545 U.S.
at 532.

In the instant case, movant seeks to assert nine claims of ineffective

assistance of

post-conviction counsel.

None of these claims were presented in

movant’s original § 2254 petition. Because movant is seeking to add new grounds for
relief to his original petition, his Rule 60(b) motion is a second or successive petition
under § 2244. Consequently, the motion will be removed from the docket report for
this case and will be filed as a new case bearing a new case number.
Accordingly,
IT IS HEREBY ORDERED that the Clerk of Court shall remove the motion for
relief from judgment [Doc. #59] from the instant case, and file it as a new case with
a new case number.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of April, 2014.

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