Wilcock v. Knudsen

Filing 7

ORDER DISMISSING CASE. Motion to Proceed IFP 2 DENIED as moot. COA denied. Signed by Judge Dana L. Christensen on 3/4/2024. Transmitted electronically to prison for delivery to inmate. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
E.B. WILCOCK,

Cause No. CV 24-29-M-DLC-KLD

Petitioner,
ORDER
vs.
JIM SALMONSEN, ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
On February 2, 2024, Petitioner E.B. Wilcock (“Wilcock”) filed this action
for writ of habeas corpus. (Doc. 1.) He has styled the filing, however, as a “Writ
of Habeas Corpus Via Rule 60(B)(6)- Extraordinary Circumstances.” (Id. at 1.)
While Wilcock initially moved the Court to proceed in forma pauperis (“IFP”),
(Doc. 2), on February 21, 2021, Wilcock paid the filing fee. Accordingly, his
motion to proceed IFP will be denied as moot.
Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts requires courts to examine the petition before ordering the
respondent to file an answer or any other pleading. The petition must be
summarily dismissed “[i]f it plainly appears from the face of the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court.” Id.
For the following reasons, Wilcock’s filing will be dismissed.
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I.

Background

On February 23, 2004, Wilcock filed his first federal petition for writ of
habeas corpus challenging his 1998 conviction for sexual intercourse without
consent. The petition was denied on the merits on August 16, 2006. Wilcock v.
Mahoney, Cause No. CV 04-32-M-DWM, Ord. (D. Mont. Aug. 16, 2006). A
certificate of appealability was denied by both this Court and by the Ninth Circuit
Court of Appeals. See e.g., Wilcock v. Mahoney, No. 06-35854, Ord. (9th Cir. Dec.
19, 2006).
Wilcock then filed a second petition with this Court alleging (i) his sentence
was invalid and (ii) the state legislature’s amendments to certain statutory
provisions gave rise to technical defects that meant there was no statute in effect at
the time he was convicted and/or that he was sentenced in excess of the statutory
maximum. See Wilcock v. Frink, Cause No. CV-11-152-M-DWM, Pet. (filed Nov.
17, 2011). Because the petition was Wilcock’s second attempt at challenging his
1998 conviction, this Court found it had no jurisdiction to consider the matter and
it was dismissed. Wilcock v. Frink, Cause No. CV-11-152-M-DWM, Ord. (D.
Mont. Jan. 4, 2012).
II.

Rule 60(b) motion vs. Successive Habeas Petition

Wilcock now moves, ostensibly under Federal Rule of Civil Procedure
60(b), to obtain relief from his state court judgment. (Doc. 1.)
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The Court must question first whether Wilcock’s filing is a Rule 60(b)
motion or a disguised 28 U.S.C. § 2254 petition. “Habeas corpus petitioner cannot
‘utilize a Rule 60(b) motion to make an end-run around the requirements of
[Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)]’ or to
otherwise circumvent that statute’s restrictions on second or successive habeas
corpus petitions.” Jones v. Ryan, 733 F. 3d 825, 833 (9th Cir. 2013)(quoting
Calderon v. Thompson, 523 U.S. 538, 547 (1998)). A legitimate Rule 60(b)
motion “attacks …some defect in the integrity of the federal habeas proceedings.”
Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). A second or successive petition is
a filing that contains one or more claims asserted as the basis for relief from a state
court’s judgment of conviction.” Id. “[A] motion that does not attack ‘the
integrity of the proceedings, but in effect asks for a second chance to have the
merits determined favorably’ raises a claim that takes it outside the bounds of Rule
60(b) and within the scope of AEDPA’s limitations on second or successive habeas
corpus petitions.” Jones, 733 F 3d at 834 (quoting Gonzalez, 545 U.S. at 532, n.
5). Such a motion “although labeled as a Rule 60(b) motion, is in substance a
successive habeas petition and should be treated accordingly.” Gonzalez, 545 U.S.
at 531.
Wilcock’s Rule 60(b) motion is a disguised § 2254 petition. He does not
allege that there was a defect in the integrity of his prior federal habeas
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proceedings. See Gonzalez, 545 U.S. at 530. Instead, he generally alleges that he
should be allowed to withdraw the guilty plea he entered in the underlying state
proceedings based upon his contention that the prosecution breached the terms of
the plea agreement. (Doc. 1 at 3.) In support of his argument, he provides a copy
of the original plea agreement, the sentencing hearing transcript, and state case
law. See (Doc. 1-1 at 2-25); see also (Doc. 5.) Wilcock essentially seeks a second,
or rather third, bite at the apple in an effort “to have the merits determined
favorably.” Jones, 733 F. 3d at 834 (quotations omitted). Accordingly, his filing
constitutes a successive petition under 28 U.S.C. § 2244(b)(3)(A).
III.

Successive Petition

This Court lacks jurisdiction to hear a successive petition, challenging
Wilcock’s 1998 judgment of conviction, unless Wilcock first obtains authorization
from the Court of Appeals to file a second habeas petition in this Court. 28 U.S.C.
§ 2244(b); Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam). To the extent
Wilcock intends to make any new arguments in his present petition, he may
attempt to present those arguments to the Court of Appeals. As it stands, his
present petition is an unauthorized second/successive petition and must be
dismissed for lack of jurisdiction. Burton, 549 U.S. at 149.
This Court must dismiss any claim which was presented in a prior habeas
petition. 28 U.S.C. § 2244(b)(1). A new claim in a second or successive petition
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must be dismissed even if not presented in a prior habeas petition, unless the claim
rests on new law, new evidence, or Petitioner’s actual innocence. 28 U.S.C. §
2244(b)(2). Even in the latter circumstance, leave of the Court of Appeals is
required to maintain the successive petition. 28 U.S.C. § 2244(b)(3). Wilcock is
required to raise his grounds for making a second or successive petition before the
Ninth Circuit, in a motion for leave to file a second or successive petition. “Before
a second or successive application permitted by this section is filed in the district
court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.” 28 U.S.C. §
2244(b)(3)(A).
Until Wilcock obtains leave from the Ninth Circuit Court of Appeals to file a
successive habeas petition, this Court lacks jurisdiction to hear his claims. Burton
v. Stewart, 549 U.S. 147, 149 (2007) (per curiam).
IV.

Certificate of Appealability

The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rule 11(a), Rules governing § 2254
Proceedings. A COA should issue as to those claims on which a petitioner makes
a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The standard is satisfied if “jurists of reason could disagree with the
district court’s resolution of [the] constitutional claims” or “conclude the issues
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presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)).
A certificate of appealability will be denied because there is no doubt this
Court lacks jurisdiction and there is no basis to encourage further proceedings at
this time.
Based upon the foregoing, the Court enters the following:
ORDER
1. Wilcock’s Petition (Doc. 1) is DISMISSED for lack of
jurisdiction. Absent leave from the Ninth Circuit, Wilcock should refrain from
making further challenges to his 1998 conviction via § 2254 petitions.
2. Wilcock’s Motion to Proceed IFP (Doc. 2) is DENIED as moot.
3. The Clerk of Court is directed to enter, by separate document, a
judgment of dismissal.
4. A certificate of appealability is DENIED.
DATED this 4th day of March, 2024.

/s/ Dana L. Christensen
Dana L. Christensen
United States District Court Judge

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