Kibby v. Kemna

Filing 49

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Petitioner Reginald Kibby's Motion for Relief under Federal Rule of Civil Procedure 60(b) [ECF No. 44 ] is hereby DENIED. Signed by District Judge E. Richard Webber on 09/26/2012. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

REGINALD KIBBY,
Petitioner,
vs.
MIKE KEMNA,
Respondent.

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Case No. 4:07CV1123 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Petitioner Reginald Kibby’s Motion for Relief
Under Federal Rule of Civil Procedure 60(b) [ECF No. 44]. Petitioner is seeking reconsideration
of the Court’s Order and Judgment, dated December 29, 2010, that denied his § 2254 motion and
denied him a certificate of appealability [ECF Nos. 28, 29].
In his Motion, Petitioner asks that the Court review four of the ten grounds for relief
alleged in his §2254 motion, specifically grounds 7-10. In those grounds, Petitioner alleged that
he received ineffective assistance of counsel when his post-conviction counsel failed to raise in
the amended post-conviction relief motion a claim that his trial counsel was ineffective for: 7)
failing to investigate potentially exculpatory evidence involving blood found on Petitioner’s
jeans; 8) failing to object to a police officer’s testimony that he had read Petitioner his Miranda
rights; 9) failing to move for a mistrial when Petitioner’s wife testified that her testimony was
coerced by threats; and 10) failing to investigate the lack of a court order authorizing the video
deposition of Charles Lowery.
Petitioner argues that he is entitled to relief under three subsections of Rule 60(b) because
the judgment is void; the judgment has been satisfied, released or discharged, or it is no longer
equitable that the judgment should have prospective application; and any other reason justifying

relief from judgment [ECF No. 44].
I. BACKGROUND
On August 27, 1999, a jury in the Circuit Court of the City of St. Louis, Missouri,
convicted Petitioner of murder in the first degree, armed criminal action, and robbery in the first
degree, arising out of the brutal robbery, stabbing, and killing of a pawn shop owner on October
29, 1996 [ECF No. 28]. Thereafter, Petitioner was sentenced to concurrent terms of life
imprisonment, without eligibility for probation or parole, for the murder conviction; and to
twenty-five years for both the armed criminal action conviction and the robbery conviction.
Petitioner appealed his conviction and sentence, but the Missouri Court of Appeals, Eastern
District, affirmed the judgment on November 14, 2000. State v. Kibby, 33 S.W.3d 656 (Mo. Ct.
App. 2000). Petitioner filed a pro se motion, later amended by appointed counsel, for postconviction relief. Petitioner’s motion was denied without an evidentiary hearing by the motion
court; and the state appellate court affirmed the motion court’s denial on January 16, 2007.
Kibby v. State, 211 S.W.3d 639 (Mo. Ct. App. 2007).
Thereafter, Petitioner filed a motion with the state post-conviction court, seeking to
reinstate his pro se motion for post-conviction relief, and arguing that his post-conviction relief
counsel abandoned him by failing to raise his pro se grounds in the amended motion. [ECF No.
17]. Petitioner’s motion was denied on April 6, 2007, with a finding that his motion to reinstate
constituted a successive motion for post-conviction relief, a request which the motion court was
prohibited from considering by state law.
Petitioner subsequently filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254 in the United States District Court for the Western District of Missouri; his action was
transferred to this Court on June 11, 2007 [ECF Nos. 1, 7, 28]. The case was assigned to a

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Magistrate Judge, who issued a report and recommendation analyzing the ten grounds for relief
asserted by Petitioner, and recommending that Petitioner’s writ of habeas corpus be denied [ECF
No. 20].
After Petitioner objected to the magistrate’s analysis as to each of the ten grounds, the
District Court Judge reviewed the report and recommendation de novo [ECF No. 28]. On
December 29, 2010, the Court overruled Petitioner’s objections, accepted and adopted the
magistrate’s report and recommendation, denied Petitioner’s petition for writ of habeas corpus,
and ordered that no certificate of appealability be issued [ECF Nos. 28, 29]. Specifically, as to
the Petitioner’s claims of ineffective assistance of post-conviction counsel set forth in Grounds 7,
8, 9, and 10 of his petition, the Court found that the magistrate did not err in finding these
grounds not cognizable, because ineffectiveness of post-conviction counsel cannot provide a
basis for relief under 28 U.S.C. § 2254(i). The Court stated, “Furthermore, to the extent that
petitioner’s pro se arguments can be liberally construed to claim that the state court erred in
finding his post-conviction counsel did not abandon him, this argument also fails” [ECF No. 28].
Thereafter, Petitioner filed an Application for a Certificate of Appealability with the
Eighth Circuit Court of Appeals. After careful review of the district court’s original file, the
Eighth Circuit denied Petitioner’s application [ECF No. 40]. On July 14, the Eighth Circuit
denied Petitioner’s request for rehearing by the panel, and for rehearing en banc, and it issued its
Mandate on July 21, 2011 [ECF Nos. 41, 42].
II. STANDARD OF REVIEW: RELIEF UNDER FEDERAL CIVIL RULE OF
PROCEDURE 60(b)
Federal Civil Rule of Procedure 60 prescribes the practice in proceedings to obtain relief
for a judgment or order. On motion and just terms, the court may relieve a party from a final
judgment. Fed. Civ. R. P. 60(b). The reasons listed in Rule 60(b) include mistake, inadvertence,
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surprise, or excusable neglect; newly discovered evidence that, with reasonable diligence could
not have been discovered in time to moved for a new trial under Rule 59(b); and fraud,
misrepresentation, or misconduct by an opposing party. Fed.Civ. R. P. 60(b)(1)-(3).
Under Rule 60(b), the Court also may relieve a party from a final judgment on the
grounds that the judgment is void; that the judgment has been satisfied, released or discharged;
that the judgment is based on an earlier judgment that has been reversed or vacated; or that
applying the judgment prospectively is not longer equitable. Fed. Civ. R. P. 60(b)(4)-(5). The
Court may also may set aside a judgment for any other reason that justifies relief. Fed. Civ. R. P.
60(b)(6). While Rule 60(b)(6) grants courts considerable equitable power to achieve justice, it is
invoked only in “extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
Petitioner asserts that he is entitled to relief under these last three subsections of Rule
60(b), asking this Court to reconsider Grounds 7-10 of his § 2254 motion, “in light of the United
States Supreme Court Case: Luis Mariano Martinez, petitioner vs. Charles L. Ryan, Director,
Arizona Department of Corrections” [ECF No. 44]. Consequently, the Court construes
Petitioner’s argument to be a challenge to the district court’s determination that his claims were
procedurally defaulted. With this construction in mind, the Court finds that Petitioner is not
entitled to relief under subsection (4) of Rule 60(b), because the December 29, 2010 Judgment is
not void; and the district court did not lack jurisdiction of the subject mater or over the parties, or
act in a manner inconsistent with due process of law. Chambers v. Armontrout, 16 F.3d 257, 260
(8th Cir. 1994).
III. DISCUSSION
Absent a right to counsel in a collateral proceeding, an attorney’s errors in that proceeding
do not establish cause for a prisoner’s procedural default of claims of ineffective assistance of

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trial counsel. Coleman v. Thompson, 501 U.S. 722, 754-55 (1991). In the Martinez case cited by
Petitioner as entitling him to relief under subsections (4)-(6) of Rule 60(b), the Supreme Court
considered a constitutional law question left open by its decision in Coleman: “whether a
prisoner has a right to effective counsel in collateral proceedings which provide the first occasion
to raise a claim of ineffective assistance at trial.” Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012).
The Court used the term “initial-review collateral proceedings” to refer to proceedings held in
states, such as Arizona, that do not permit convicted persons alleging ineffective assistance of
trial counsel to raise such claims on direct review, and instead require prisoners to assert their
claims in state collateral proceedings. Id. at 1313, 1315. The Court qualified Coleman “by
recognizing a narrow exception: Inadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective
assistance at trial.” Id. at 1315.
To the extent Petitioner’s argument can be construed as asserting that subsection (5) of
Rule 60(b) entitles him to relief because the judgment denying his petition was based on
Coleman, it fails. Martinez did not reverse or vacate Coleman, and it did not change the general
rule that negligence of post-conviction counsel cannot excuse most procedural defaults.
Martinez, 132 S.Ct. at 1315-17. The narrow exception to the procedural bar doctrine recognized
by the Supreme Court in the Martinez decision is applicable only where the initial-review
collateral proceeding is the first designated opportunity for a prisoner to raise claims of
ineffective assistance at trial, and thus does not apply here. Id. Petitioner has availed himself of
many opportunities to assert his claims: in his direct state appeal of his conviction; in his state
ineffective-assistance-of-counsel proceeding; and in his § 2254 proceeding. As well, the Eighth

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Circuit reviewed the original district court file before dismissing his appeal and denying his
petitions for rehearing.
Moreover, Petitioner has not shown “extraordinary circumstances” that would justify
reopening a final judgment under Rule 60(b)(6). Even if it were applicable to the Petitioner’s
situation, Martinez’s narrow exception to the procedural bar doctrine is not such a supervening
change in law so as to constitute an extraordinary circumstance. See Martinez, 132 S.Ct. at 1315;
Fed. R. Civ. P. 60(b)(6). Here, Petitioner’s claims of abandonment by his post-conviction relief
counsel were considered and rejected by the state court. As well, after Petitioner filed his
objections to the magistrate’s report and recommendation, the district court liberally construed
Petitioner’s arguments: 1) to assert abandonment as an excuse for procedural default of the
claims asserted in grounds 7-10, in that the state court erred when it found that he failed to show
that his post-conviction relief counsel abandoned him; and 2) to claim that the state court erred in
finding that his post-conviction counsel did not abandon him. Upon de novo review, the district
court found Petitioner’s arguments failed under both constructions. This Court agrees.
Accordingly,
IT IS HEREBY ORDERED that Petitioner Reginald Kibby’s Motion for Relief under
Federal Rule of Civil Procedure 60(b) [ECF No. 44] is hereby DENIED.
Dated this

26th

day of September, 2012.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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