McCloud v. United States of America

Filing 32

MEMORANDUM AND ORDER -.....IT IS HEREBY ORDERED that movant Donnell McClouds motion under Rule 60(b)(6) for Relief from a Judgment or Order is reclassified as a second or successive § 2255 Motion to Vacate, Set Aside, or Correct S entence. [Doc. 31] IT IS FURTHER ORDERED that movant's Motion is DISMISSED for failure to obtain prior authorization from the Eighth Circuit Court of Appeals. [Doc. 31]. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge Charles A. Shaw on 10/20/2016. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DONNELL MCCLOUD,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:11-CV-1721 CAS

MEMORANDUM AND ORDER
This closed federal habeas matter under 28 U.S.C. § 2255 is before the Court on federal
prisoner Donnell McCloud’s motion for “Rule 60(b) Relief from a Judgment or Order.” The motion
will be dismissed for failure to obtain authorization from the Eighth Circuit Court of Appeals to file
a second or successive motion under § 2255.
I. Background
On November 26, 2008, a federal jury found movant guilty on three counts of Production
of Child Pornography. On February 29, 2009, the Court sentenced movant to thirty years on each
of the three counts, the sentences to run concurrently. Movant filed a direct appeal, but the Eighth
Circuit Court of Appeals affirmed the conviction on December 29, 2009. United States v. McCloud,
490 F.3d 560 (8th Cir. 2009). On October 3, 2011, movant filed a motion under § 2255 to vacate,
set aside, or correct his sentence. The Court held an evidentiary hearing on some of the claims in
movant’s § 2255 motion, and issued a Memorandum and Order denying all of movant’s § 2255
claims on January 15, 2015. The Court declined to issue a certificate of appealability. Movant filed

an appeal, but the Eighth Circuit Court of Appeals also declined to issue a certificate of
appealability. Movant filed the instant Rule 60(b)(6) motion on September 28, 2016.1
II. Discussion
A. Standard for Review of 60(b) Motion in Closed Habeas Proceeding
A federal prisoner may file a second or successive motion under § 2255 only after obtaining
authorization to do so from the appropriate United States Court of Appeals. 28 U.S.C. § 2255(h);
see also 28 U.S.C. § 2244(b)(3). The Eighth Circuit has directed that where a prisoner files a Rule
60(b) motion following the dismissal of a habeas petition, the district court should file the motion
and then conduct a brief initial inquiry to determine whether the allegations in the Rule 60(b) motion
in fact amount to a second or successive collateral attack under either 28 U.S.C. § 2255 or § 2254.
Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002). If the district court determines the Rule
60(b) motion is actually a second or successive habeas petition, it should dismiss the motion for
failure to obtain authorization from the Court of Appeals or, in its discretion, transfer the purported
Rule 60(b) motion to the Court of Appeals. Boyd, 304 F.3d at 814. “It 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 . . . § 2255 action by purporting to invoke some other procedure.” United States v.
Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005) (per curiam) (citing United States v. Patton, 309 F.3d
1093 (8th Cir. 2002) (per curiam), and Boyd, 304 F.3d at 814).
The Supreme Court has held that a state prisoner’s Rule 60(b) motion challenging the denial
of federal habeas corpus relief that merely alleges a defect in the integrity of the habeas proceedings

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Movant filed an identical Rule 60(b)(6) motion in his closed criminal case, United States
v. McCloud, No. 4:08-CR-156 CAS. That motion will be summarily dismissed for the reasons
stated in this Memorandum and Order.
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and does not attack the merits of the decision to deny the petition or present new grounds for relief
from the state conviction is not a second or successive habeas petition subject to the restrictions on
such petitions set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Gonzalez
v. Crosby, 545 U.S. 524, 535-36 (2005) (Rule 60(b) motion challenging district court’s previous
ruling on AEDPA statute of limitations was not the equivalent of a successive habeas petition). In
contrast, the Supreme Court has instructed that Rule 60(b) motions should be treated as second or
successive habeas petitions where they assert or reassert a federal basis for relief from the
underlying conviction, including where a motion seeks to present a claim of constitutional error
omitted from the movant’s initial habeas petition, or seeks vindication of a habeas claim by
challenging the habeas court’s previous ruling on the merits of that claim. Id. at 531-32.
The Eighth Circuit has explained that under Gonzalez, “A Rule 60(b) motion is a second or
successive habeas corpus application if it contains a claim. For the purpose of determining whether
the motion is a habeas corpus application, claim is defined as an ‘asserted federal basis for relief
from a state court’s judgment of conviction’ or as an attack on the ‘federal court’s previous
resolution of the claim on the merits.’” Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009) (quoting
Gonzalez, 545 U.S. at 530, 532). “‘On the merits’ refers ‘to 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. (quoting Gonzalez, 545 U.S. at 532 n.4.) “When a Rule 60(b) motion presents a claim, it must
be treated as a second or successive habeas petition under AEDPA.” Id.
The Supreme Court limited its holding in Gonzalez to the application of Rule 60(b) in habeas
proceedings filed by state prisoners under 28 U.S.C. § 2254, see Gonzalez, 545 U.S. at 529 n.3, even
though the provisions of §§ 2254 and 2255 concerning second or successive motions are “similar.”

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Id. The Eighth Circuit has applied the Gonzalez analysis to second or successive motions under
§ 2255, however. See Ward, 577 F.3d at 933.
B. Movant’s Motion for Rule 60(b)(6) Relief
Rule 60(b) provides that a court may grant relief from a judgment for the following specified
grounds: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence
which by due diligence could not have been discovered in time to move for a new trial under Rule
59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is
void; (5) the judgment has been satisfied, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the operation of the judgment. See Fed.
R. Civ. P. 60.
Movant’s motion is based solely on Rule 60(b)(6). “Relief is available under Rule 60(b)(6)
only where exceptional circumstances have denied the moving party a full and fair opportunity to
litigate his claim and have prevented the moving party from receiving adequate redress.” Harley
v. Zoesch, 413 F.3d 866, 871 (8th Cir. 2005).
Movant’s motion raises the following three issues: (1) movant’s retained habeas counsel
fraudulently told him that counsel would include a claim in the § 2255 indictment based on a fatal
variance in the charging indictment, but counsel intentionally failed to include such a claim; (2) in
ruling on the § 2255 motion, this Court did not properly analyze defense counsel’s role in the
criminal case under Strickland,2 as it “never weighted [sic] on how counsel[’s] deficient performance
prejudiced the defense,” Mot. at 10; and (3) “§ 2255 was [the] improper vehicle to test petitioner’s

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Strickland v. Washington, 466 U.S. 668 (1984).
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constitutional claims” concerning the denial of movant’s requests for a trial continuance, an attorney
of his choice, and to proceed pro se, because these issues were “kept from the trial record” by the
trial court and the “omitted proceedings prevented meaningful appellate review.” Mot. at 12.
The Court concludes that the three issues movant raises assert “claims” as defined in
Gonzalez, because each issue asserts a basis for relief from the judgment of conviction or attacks
this Court’s previous resolution of the claim on the merits. See Gonzalez, 544 U.S. at 532. As a
result, movant’s motion must be treated as a second or successive petition under AEDPA and
dismissed. See Ward, 577 F.3d at 933.
Movant’s assertion that his retained habeas counsel misled him by omitting from the § 2255
motion a claim concerning a fatal variance in the indictment comprises, in substance, an allegation
of ineffective assistance of counsel. The Eighth Circuit has instructed that “[a]lthough an assertion
of ineffective assistance of habeas counsel may be characterized as a defect in the integrity of the
habeas proceeding, it ultimately seeks to assert or reassert substantive claims with the assistance of
new counsel.” Ward, 577 F.3d at 932 (citing Gonzalez, 545 U.S. at 532 n.5). Such as assertion is
a “claim” because it “in effect asks for a second chance to have the merits determined favorably.”
Id. at 939 (Melloy, J., concurring) (quoting Gonzalez, 545 U.S. at 532 n.5). This is exactly what
movant’s first issue seeks.
Movant’s second issue, that this Court failed to properly apply the Strickland analysis to his
ineffective assistance of counsel claims, presents a claim because it directly attacks this Court’s
previous resolution of movant’s § 2255 claim on the merits. See Gonzalez, 545 U.S. at 532.
Movant’s third issue, that a § 2255 motion was the improper vehicle to test his constitutional
claims concerning the denial of his request for a trial continuance, for an attorney of his choice, and
to proceed pro se, presents a claim because it both directly attacks this Court’s previous resolution
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of movant’s § 2255 claim on the merits, and offers new grounds for relief from movant’s underlying
conviction based on alleged trial court error. See Gonzalez, 545 U.S. at 532.
III. Conclusion
For the foregoing reasons, Rule 60(b)(6) does not provide movant with a means to challenge
his sentence, because the relief he seeks is properly brought as a second or successive § 2255
motion. Movant did not obtain advance authorization from the Eighth Circuit Court of Appeals to
file the instant motion, as required by law. See Lambros, 404 F.3d at 1037. As a result, the Court
will dismiss the motion under Rule 60(b)(6) for movant’s failure to obtain authorization from the
Court of Appeals. See Boyd, 304 F.3d at 814.
Accordingly,
IT IS HEREBY ORDERED that movant Donnell McCloud’s motion under Rule 60(b)(6)
for Relief from a Judgment or Order is reclassified as a second or successive § 2255 Motion to
Vacate, Set Aside, or Correct Sentence. [Doc. 31]
IT IS FURTHER ORDERED that movant’s Motion is DISMISSED for failure to obtain
prior authorization from the Eighth Circuit Court of Appeals. [Doc. 31]
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 20th day of October, 2016.

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