Tolen v. Attorney General of the State of Missour

Filing 70

MEMORANDUM AND ORDER re: 67 PRO SE MOTION filed by Petitioner Eric T. Tolen. IT IS HEREBY ORDERED that Petitioner=s Motion for Relief Pursuant to Rule 60(b)(6) # 67 is DENIED in part and DISMISSED in part for lack of jurisdiction; the motion i s denied to the extent the motion is treated as one brought under Rule 60(b)(6), and dismissed for lack of jurisdiction as a second or successive habeas petition in all other respects. IT IS FURTHER ORDERED that a certificate of appealability is denied as Petitioner has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Rodney W. Sippel on 12/10/15. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ERIC T. TOLEN,
Petitioner,
vs.
JEFF NORMAN,
Respondent.

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Case No. 4:10 CV 2031 RWS

MEMORANDUM AND ORDER
This matter is before me on Petitioner Eric T. Tolen’s Motion for Relief from Judgment
pursuant to Federal Rule of Civil Procedure 60(b)(6). Petitioner seeks reconsideration of my
denial of his petition for habeas relief. Petitioner makes what are essentially three claims: (1) his
Sixth and Fourteenth Amendment claims were not adjudicated by this Court and/or erroneously
determined to be barred by Stone v. Powell, 428 U.S. 465 (1976); (2) his claim under Brady v.
Maryland, 373 U.S. 83 (1963) should be considered on the merits because any procedural default
can be cured by Martinez v. Ryan, 132 S. Ct. 1309 (2012); and (3) the state destroyed
exculpatory evidence (an audio recording of a recantation statement), also in violation of Brady.
I.

BACKGROUND
On November 7, 2008, Petitioner was convicted by a jury of thirty-six counts of statutory

sodomy and one count of witness tampering, receiving a sentence of sixty-five years
imprisonment. Petitioner filed a direct appeal to the Missouri Court of Appeals, which affirmed
his conviction and sentence on December 22, 2009. Tolen v. Missouri, 304 S.W.3d 229 (Mo. Ct.
App. 2009). The Missouri Supreme Court denied Petitioner’s application for transfer on March

23, 2010. Petitioner then filed a petition for writ of certiorari before the United States Supreme
Court, which was denied. Tolen v. Missouri, 562 U.S. 861 (2010). Next, Petitioner filed a Motion
to Vacate, Set Aside, or Correct the Judgment and Sentence under Missouri Supreme Court Rule
29.15, which was denied by the Missouri Court of Appeals on March 26, 2013. Tolen v.
Missouri, No. ED 98414, 2013 WL 1209100 (Mo. Ct. App. 2013). Petitioner then filed a petition
for habeas relief under 28 U.S.C. § 2254. [#3].
On March 11, 2014, the Magistrate Judge filed her Report and Recommendation that
Petitioner’s habeas petition should be denied. [#45]. Petitioner filed his objections to the Report
and Recommendation on March 26, 2014. [#46]. On June 18, 2014, I issued a Memorandum and
Order that sustained, adopted, and incorporated the Magistrate Judge’s Report and
Recommendation and denied Petitioner’s habeas petition. [#47]. I found that Petitioner’s Fourth
Amendment claims were barred from review pursuant to Stone v. Powell, since Petitioner was
given the opportunity to fully and fairly litigate his claims in state court. I also found that
Petitioner’s Brady claim was procedurally barred due to his failure to raise it in state court, and
that Petitioner had failed to establish cause and actual prejudice to overcome the procedural
default.
The United States Court of Appeals for the Eighth Circuit denied Petitioner’s application
for certificate of appealability and issued the mandate. [#61 and #63]. The United States
Supreme Court denied Petitioner’s petition for certiorari on May 18, 2015. [#66]. On June 16,
2015, Petitioner filed with this Court a Motion for Relief from Judgment or Order Pursuant to
Rule 60(b). [#67].
II.

LEGAL STANDARD
A court may grant relief under Rule 60(b)(6) for “any other reason that justifies relief”

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when a motion is made “within a reasonable time.” Fed. R. Civ. P. 60(b)(6). “Rule 60(b)
authorizes relief in only the most exceptional of cases.” Int'l Bhd. of Elec. Workers, Local Union
No. 545 v. Hope Elec. Corp., 293 F.3d 409, 415 (8th Cir. 2002). A movant seeking relief under
Rule 60(b)(6) is required to show “extraordinary circumstances” justifying the reopening of a
final judgment. Ackermann v. United States, 340 U.S. 193, 199 (1950); accord, id., at 202;
Liljeberg, 486 U.S., at 864; id., at 873 (Rehnquist, C. J., dissenting) (“This very strict
interpretation of Rule 60(b) is essential if the finality of judgments is to be preserved”). Such
circumstances will rarely occur in the habeas context. Gonzalez v. Crosby, 545 U.S. 524, 535
(2005).
Petitioners sometimes request relief under Rule 60(b) when the motion is more properly
characterized as a successive ' 2254 petition. See, e.g., Boyd v. United States, 304 F.3d 813, 814
(8th Cir. 2002). However, a state prisoner may file a second or successive motion under ' 2254
only after obtaining authorization to do so from the appropriate United States Court of Appeals.
28 U.S.C. ' 2244(b)(3). Where a prisoner files a Rule 60(b) motion following the dismissal of a
habeas petition, the district court must determine whether the allegations in the Rule 60(b)
motion in fact amount to a second or successive collateral attack under 28 U.S.C. ' 2254. Boyd,
304 F.3d at 814. If the Rule 60(b) motion Ais actually a second or successive habeas petition, the
district court should dismiss it for failure to obtain authorization from the Court of Appeals or, in
its discretion, may transfer the motion . . . to the Court of Appeals.@ Id. AIt is well-established that
inmates may not bypass the authorization requirement of 28 U.S.C. ' 2244(b)(3) for filing a
second or successive ' 2254 . . . action by purporting to invoke some other procedure.@ United
States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005).

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A Rule 60(b) motion that merely alleges a defect in the integrity of the habeas
proceedings is not a second or successive habeas petition. See Gonzalez v. Crosby, 545 U.S. 524,
535-36 (2005). A Rule 60(b) motion is also not a successive habeas petition if it Amerely asserts
that a previous ruling which precluded a merits determination was in error -- for example, a
denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.@ Id.
at 532 n.4. However, a Rule 60(b) motion is a successive petition if it contains a claim, which is
defined as an Aasserted federal basis for relief@ from a judgment of conviction or as an attack on
the Afederal court=s previous resolution of the claim on the merits.@ Id. at 530, 532. AOn the
merits@ refers Ato a determination that there exist or do not exist grounds entitling a petitioner to
habeas corpus relief under 28 U.S.C. '' 2254(a) and (d).@ Id. at 532 n.4. When a Rule 60(b)
motion presents such a claim, it must be treated as a second or successive habeas petition.
III.

DISCUSSION
A. Sixth and Fourteenth Amendment Claims
In ground 4 of his habeas petition, Petitioner claimed he was deprived of his right to a fair

trial because of the state court’s refusal to order the return of various documents seized during a
search that violated his Fourth, Sixth, and Fourteenth Amendment rights. At habeas review, I
found that his Fourth Amendment claims were barred from review pursuant to Stone v. Powell,
because Petitioner had received the opportunity to fully and fairly litigate his claims in state
court.
In his motion to reconsider, Petitioner argues that I failed to adjudicate his Sixth
Amendment and Fourteenth Amendment claims, and/or that I erroneously determined the claims
to be barred under Stone v. Powell. Petitioner claims that the state’s search and seizure of two
boxes in the trunk of his car and failure to return them until the second week of trial violated his

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rights under the Fourth, Sixth, and Fourteenth Amendments, depriving him of a fair trial. He
asserts that the two boxes contained his “work product” and exculpatory documents such as
recantation statements.1 His Sixth and Fourteenth Amendment claims arising from the state’s
actions, he argues, cannot be barred by Stone, which is applicable only to Fourth Amendment
claims.
Petitioner is correct that Stone may not apply to bar Sixth Amendment and Fourteenth
Amendment due process claims. Kimmelman v. Morrison, 477 U.S. 365 (1986); Cody v. Solem,
755 F.2d 1323 (8th Cir. 1985). Regardless of how Petitioner labels them, however, his claims
were based on alleged Fourth Amendment violations, i.e., the illegal search and seizure of the
two boxes. Petitioner himself admitted that all four of his grounds for habeas relief were based
on Fourth Amendment violations. In his Response to the Court’s Order to Show Cause,
Petitioner stated that “[a] review of the four grounds raised in petitioner’s federal habeas petition
clearly reveals that each of these claims are based upon ‘claims of illegal searches and seizures.’”
Pet. Resp. to Order to Show Cause, Doc. No. 7, at 7. The mere fact that Petitioner summarily
labels the conduct as violations of his Sixth and Fourteenth Amendment rights does not change
the fact that the alleged violations were based on his Fourth Amendment rights. The Court
reviewed these claims in its Memorandum and Order denying habeas relief, and determined that
they were properly barred under Stone. As a result, Petitioner is presenting constitutional claims
that were presented in his habeas petition, and Petitioner is seeking successive habeas review.
Gonzalez v. Crosby, 545 U.S. 524, 529-30 (2005); 28 U.S.C. § 2244(b)(1). However, Petitioner

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With respect to the boxes, the Missouri Court of Appeals found that: “There was no evidence presented that Tolen
could not recreate these files from his own thoughts and recollections. Moreover, there was no evidence that Tolen’s
attorneys were unable to prepare his defense absent the materials seized from his trunk, or that the defense was
forced to proceed differently as a result of the retention of the documents.” State v. Tolen, 304 S.W.3d 229, 235
(Mo. Ct. App. 2009). The court concluded that “Tolen’s right to fair trial was not violated by the trial court’s alleged
failure to order the files returned to him.” Id.

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has not obtained authorization from the Eighth Circuit Court of Appeals to file a successive
habeas petition. As a result, Petitioner’s claim that his rights under the Sixth and Fourteenth
Amendments were violated will be dismissed for lack of jurisdiction because Petitioner has not
obtained certification to file a successive habeas petition from the Eighth Circuit.
B. Brady Claim
Next, Petitioner requests that this Court reconsider its determination that his Brady claim
was procedurally defaulted. Petitioner contends that a merits review of his Brady claim is
warranted because he has established cause and actual prejudice to overcome any procedural
default caused by post-conviction counsel. To establish cause, Petitioner cites to Martinez v.
Ryan, which provides that “[i]nadequate 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.” Martinez v. Ryan, 132 S. Ct. 1309, 1315. However, Petitioner may not invoke
Martinez to establish cause to cure the procedural default of his Brady violation claim. Martinez
only applies to preserve underlying ineffective-assistance-of-trial-counsel claims, not Brady
violation claims. Id. As a result, I will deny Petitioner’s claim because he cannot establish cause
and prejudice to overcome the procedural default, nor has he established that an “extraordinary
circumstance” exists to warrant relief from final judgment under Rule 60(b)(6).
C. Destruction of Exculpatory Evidence Claim
Finally, Petitioner brings a new Brady claim based upon the state’s alleged destruction of
exculpatory evidence. He contends that the state destroyed an audio recording containing a

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recantation statement made by one of his victims. This claim was not brought in Petitioner’s
original petition for habeas relief, nor was it brought on his direct appeal.2
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) prohibits the
presentation of new claims not raised in a prior application, subject to a narrow exception
provided in 28 U.S.C. § 2244(b)(2). The Supreme Court, applying § 2244(b)(2), explained that
“any claim that has not already been adjudicated [in a previous petition] 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.” Gonzalez v. Crosby, 545 U.S. 524, 529-30 (2005). Here,
Petitioner is presenting a new claim attacking the judgment of conviction, a claim which was not
presented in his original habeas petition. His claim does not rely on a new and retroactive rule of
constitutional law, nor does it rely on new facts showing actual innocence. Accordingly, to the
extent that he is bringing this new claim alleging the state’s destruction of exculpatory evidence,
Petitioner is seeking successive habeas review. Id. Petitioner has not obtained authorization from
the Eighth Circuit Court of Appeals to file a successive habeas petition. As a result, this claim
will be dismissed for lack of jurisdiction because Petitioner has not obtained certification to file a
successive habeas petition from the Eighth Circuit.
Additionally, even if Petitioner’s new claim were not successive, Petitioner may not avail
himself of Martinez to demonstrate cause for its procedural default. As discussed above,
Martinez may be invoked to preserve underlying ineffective-assistance-of-trial-counsel claims,
not Brady claims alleging the state’s destruction of exculpatory evidence. Martinez v. Ryan, 132
S. Ct. 1309, 1315 (2012).

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Petitioner raised this claim alleging the state’s destruction of exculpatory evidence in his Rule 29.15 motion, but
appears to have later abandoned it in order to preserve his habeas petition. See Pet. Resp. to Order to Show Cause,
Doc. No. 7, at 8-9.

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IV.

CONCLUSION
For the reasons stated above, Petitioner’s Sixth Amendment, Fourteenth Amendment, and

destruction of exculpatory evidence claims are improper successive habeas petitions, and
Petitioner has not established “extraordinary circumstances” justifying reconsideration based on
his new Brady claim. As a result, I will dismiss in part and deny in part Petitioner’s motion for
reconsideration.
I have also considered whether to issue a certificate of appealability. To grant a certificate
of appealability, the Court must find a substantial showing of the denial of a federal
constitutional right. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial
showing is a showing that issues are debatable among reasonable jurists, a court could resolve
the issues differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569
(8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994). Petitioner has not
made such a showing. Therefore, I will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that Petitioner=s Motion for Relief Pursuant to Rule
60(b)(6) #[67] is DENIED in part and DISMISSED in part for lack of jurisdiction; the motion is
denied to the extent the motion is treated as one brought under Rule 60(b)(6), and dismissed for
lack of jurisdiction as a second or successive habeas petition in all other respects.
IT IS FURTHER ORDERED that a certificate of appealability is denied as Petitioner
has not made a substantial showing of the denial of a federal constitutional right.

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RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 10th day of December, 2015.
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