Taylor v. Russell
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that petitioner's motion to alter judgment 27 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 Rules 59(e) and 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 12/2/16. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES N. TAYLOR,
JAY CASSADY AND CHRIS
Case No. 4: 13 CV 960 RWS
MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s motion to alter or amend the
September 22, 2016 Judgment denying his habeas petition under Fed. R. Civ. P.
59(e) and 60(b)(6).
Petitioner’s Rule 59 motion is denied as untimely, as a motion to alter or
amend a judgment must be filed within 28 days after the entry of judgment. A
court may grant relief under Rule 60(b)(6) for Aany other reason that justifies
relief@ when a motion is made Awithin a reasonable time.@ Fed. R. Civ. P. 60(b)(6).
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).
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, 535B36 (2005) (Rule 60(b) motion challenging district
court=s previous ruling on statute of limitations was not the equivalent of a
successive habeas petition). 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 a claim, it
must be treated as a second or successive habeas petition.
Petitioner=s motion will be denied. Petitioner challenges the Court’s ruling
that his attorney was not ineffective for failing to ask the trial court to question
jurors about whether a juror was sleeping during part of his trial. The Court denied
this ground on the merits, finding that the state court’s determination that counsel’s
performance was neither defective nor prejudicial was not based on an
unreasonable application of Strickland v. Washington, 466 U.S. 668 (1994), or the
facts in light of the evidence. As petitioner has not obtained certification to file a
successive motion from the Eighth Circuit, petitioner’s successive petition will be
denied. Even if the claim were properly before me, it would still be denied for the
reasons previously stated.
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)). Because petitioner
has not made such a showing, I will not issue a certificate of appealability.
IT IS HEREBY ORDERED that petitioner=s motion to alter judgment
[#27] 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 Rules 59(e) and
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
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of December, 2016.
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