Carter v. USA

Filing 98

MEMORANDUM AND ORDER: Accordingly, IT IS HEREBY ORDERED that Movant's Motion for Relief Under Rule 60(b) (Doc. 91 ) is DENIED to the extent it is treated as a Rule 60(b) motion and DISMISSED for lack of jurisdiction as a second or successive habeas petition in all other respects. IT IS FURTHER ORDERED that Movant's Motions for Issuance of Certificate of Appealability (Docs. 80 , 89 ) are DENIED. Signed by District Judge John A. Ross on 10/13/20. (JAB)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JERRY CARTER,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:16-cv-00025-JAR

MEMORANDUM AND ORDER
This matter is before the Court in this closed case on Movant’s Motion for Relief Under
Rule 60(b) (Doc. 91) and Motions for Issuance of Certificate of Appealability. (Docs. 80, 89).
Background
On January 7, 2016, Movant filed a Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255. (Doc. 1). Movant was granted leave to file an amended motion,
which was docketed on December 21, 2016. (Doc. 42). This Court denied the motion with
prejudice on December 10, 2018. (Docs. 71-72). Movant immediately filed a Motion for
Reconsideration pursuant to Fed. R. Civ. P. 59(e) (Doc. 74), which was denied because Movant
“present[ed] no new facts or evidence in support of reconsideration.” (Doc. 78 at 3). Movant filed
additional motions for reconsideration (Docs. 75, 77, 79), all of which were denied. (Doc. 82).

Motion for Relief Under Rule 60(b)
Movant brings the instant motion for relief pursuant to Rule 60(b), arguing that this Court
“miscontru[ed] or chang[ed]” a claim in the amended § 2255 motion. (Doc. 91 at 1). A party
moving for reconsideration pursuant to any portion of Rule 60(b) must “establish ‘exceptional

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circumstances' to obtain the ‘extraordinary relief’ the rule provides.” Prosser v. Nagaldinne, 2013
WL 308770, at *1 (E.D. Mo. Jan. 25, 2013) (quoting De Wit v. Firstar Corp., 904 F.Supp. 1476,
1496 (N.D. Iowa 1995)). “Rule 60(b) motions are viewed with disfavor and are addressed to the
Court’s discretion.” General, LLC v. Ryder System, Inc., 2018 WL 5761773, at *2 (E.D. Mo. Nov.
2, 2018).
Upon filing of a Rule 60(b) motion following dismissal of a habeas petition, the Eighth
Circuit encourages district courts to “conduct a brief inquiry to 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. § 2255.” Boyd v. U.S., 304 F.3d 813, 814 (8th Cir. 2002). A Rule 60(b) motion is considered
a second or successive habeas petition if it contains a “claim.” See Ward v. Norris, 577 F.3d 925,
933 (8th Cir. 2009); Rhodes v. United States, 2019 WL 1243128, at *2 (E.D. Mo. Mar. 18, 2019).
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 on the merits.” Gonzales v. Crosby, 545 U.S. 524, 532 (2005).
Movant contends that this Court misconstrued one of his grounds for relief and should have
recognized that he was making a claim that his Sixth Amendment rights were violated because he
did not have an opportunity to confront an unknown informant. (Doc. 91 at 4). In its denial of
Movant’s Rule 59(e) motion, this Court specifically addressed the impact of information garnered
from the confidential informant and noted that this issue was discussed in the original denial of
Movant’s motion for relief. (Doc. 78 at 4). By attacking this Court’s previous resolution on the
merits, Movant brings a “claim,” and therefore brings a second or successive habeas petition. As
discussed further below, moreover, Movant’s amended habeas motion did not mention any
Confrontation Clause claim in relation to the confidential informant. Therefore, the motion
constitutes a “claim” because it “seeks to add a new ground for relief.” Gonzales, 545 U.S. at 532.

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Because Movant did not obtain authorization from the Eighth Circuit to file this motion, the Court
will dismiss it for lack of jurisdiction.
Alternatively, if this Court were to substantively address the motion, the Court would find
that Movant’s argument does not raise exceptional circumstances justifying extraordinary relief
under Rule 60(b). Having re-reviewed Movant’s habeas petition and given it a liberal construction,
Movant simply did not make the argument that his Confrontation Clause rights were violated
because he was not able to cross-examine the confidential informant. There is one reference to the
Confrontation Clause in Movant’s petition: “Trial counsel violated the appellant’s Sixth
Amendment Confrontation right.” (Doc. 42 at 14). This claim, however, follows Movant’s ground
for relief arguing that trial counsel should have called Detective Michael Kegel to testify. Movant’s
claim regarding the confidential informant does not constitute newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a new trial under
Rule 59(e) (Fed. R. Civ. P. 60(b)(2)). There is no error justifying relief under Fed. R. Civ. P. 60(b).

Motions for Issuance of Certificate of Appealability
Movant has filed two Motions for Issuance of Certificate of Appealability. (Docs. 80, 89).
After careful review of Movant’s petition, this Court found that Movant could not make a
substantial showing of the denial of a constitutional right. (Doc. 71 at 17). Therefore, the Court
declined to issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997),
cert. denied, 525 U.S. 834 (1998). Beyond making a substantial showing of denial of a
constitutional right, Movant must also “demonstrate that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further.” Randolf v. Kemna, 276 F.3d 401, 403 n.1
(8th Cir. 2002). The instant motions simply restate many of the arguments made in Movant’s

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amended habeas petition and fail to demonstrate a substantial showing of denial of a constitutional
right.

Accordingly,
IT IS HEREBY ORDERED that Movant’s Motion for Relief Under Rule 60(b) (Doc. 91)
is DENIED to the extent it is treated as a Rule 60(b) motion and DISMISSED for lack of
jurisdiction as a second or successive habeas petition in all other respects.
IT IS FURTHER ORDERED that Movant’s Motions for Issuance of Certificate of
Appealability (Docs. 80, 89) are DENIED.

Dated this 13th day of October, 2020.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE