Leonor v. Houston

Filing 105

MEMORANDUM AND ORDER - Leonor's Motion to Amend (Filing No. 103 ) and Motion to Reopen Judgment pursuant to Fed. R. Civ. P. 60(b)(6) (Filing No. 104 ) are denied. The court will not issue a certificate of appealability. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUAN LUIS LEONOR,
Petitioner,

4:05CV3162

vs.
MEMORANDUM
AND ORDER

ROBERT HOUSTON,
Respondent.

This matter is before the court on Petitioner Juan Luis Leonor’s (“Leonor”)
Motion for Leave to Amend Habeas Corpus Petition (Filing No. 103) and Motion
to Reopen Judgment pursuant to Fed. R. Civ. P. 60(b)(6) (Filing No. 104). For the
reasons that follow, the motions will be denied.
I. BACKGROUND
The court denied Leonor habeas relief on July 5, 2007. (Filing No. 53; Filing
No. 54.) In that ruling, the court determined that certain ineffective assistance of
trial counsel claims were procedurally defaulted. (Filing No. 53 at CM/ECF pp. 914, 19.) Leonor ultimately appealed that decision to the U.S. Supreme Court.
(Filing No. 79.) The Court denied Leonor’s petition for writ of certiorari on June
20, 2008. (Id.)
On June 13, 2012, Leonor filed a Rule 60(b) motion predicated upon
Martinez v. Ryan, 132 S.Ct. 1309 (2012) (holding that where, under state law,
claims of ineffective assistance of trial counsel must be raised in an initial-review
collateral proceeding, a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-review
proceeding, there was no counsel or counsel in that proceeding was ineffective).
(Filing No. 82.) The court denied Leonor’s motion. (Filing No. 83.) It first stated

that it had “serious doubts” about (1) whether Martinez applies to Nebraska
because Nebraska does not bar ineffective assistance of trial counsel claims on
direct appeal or in motions for new trial, and (2) whether Leonor’s ineffective
assistance of trial counsel claims were “substantial” within the meaning of
Martinez. (Id.) Ultimately, the court determined that there was a simpler
explanation: Martinez “does not present the required ‘extraordinary circumstance’
justifying reopening the defaulted claims, particularly because this case has been
final for many years and murder cases like this one are especially deserving of
finality.” (Id.) (citation omitted)
Leonor appealed to the Eighth Circuit Court of Appeals, which denied him a
certificate of appealability and dismissed the appeal. (Filing No. 85; Filing No. 99.)
The mandate was issued on May 28, 2014. (Filing No. 102.) Over three years later,
Leonor filed the motions now pending before the court.
II. DISCUSSION
Pursuant to Rule 60(b), Leonor seeks to reopen the court’s judgment
regarding his procedurally-defaulted claims of ineffective assistance of trial
counsel. (Filing No. 104.) He argues that Trevino v. Thaler, 133 S. Ct. 1911, 1912
(2013) (extending Martinez to state procedural frameworks where “by reason of its
design and operation, makes it highly unlikely in a typical case that a defendant
will have a meaningful opportunity to raise an ineffective-assistance-of-trialcounsel claim on direct appeal”) applies to Nebraska, thereby extending Martinez
to Nebraska, and that he is now entitled to relief from judgment under Rule 60(b)
as shown by Buck v. Davis, 137 S. Ct. 759 (2017). (Id. at CM/ECF pp. 1-9.) In
conjunction with his Rule 60(b) motion, Leonor seeks to amend his procedurallydefaulted claims. (Filing No. 103.) He argues that his proposed amendments relate
back to his original claims, because “they all arise out of the same conduct,
transaction, or occurrence.” (See id. at CM/ECF pp. 14, 48.)

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A. Motion to Amend
Rule 15 of the Federal Rules of Civil Procedure provides that a party may
amend its pleadings with the opposing party’s consent or the court’s leave. Fed. R.
Civ. P. 15(a)(2). In addition, the rule states the “court should freely give leave
when justice so requires.” Id. “A district court may appropriately deny leave to
amend where there are compelling reasons such as undue delay, bad faith, or
dilatory motive, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the non-moving party, or futility of the amendment.”
Horras v. Am. Capital Strategies, Ltd., 729 F.3d 798, 804 (8th Cir. 2013) (internal
quotation marks omitted).
Leonor moves to amend his habeas petition over ten years after the court
denied him habeas relief. His proposed amendments include factual allegations that
Leonor knew when the court first allowed him to amend his habeas petition in
2005. (See Filing No. 12; Filing No 103.) The court, over four years ago, rejected
Leonor’s first Rule 60(b) motion also predicated on Martinez, primarily because
Martinez did not present the required “extraordinary circumstance” to justify
reopening Leonor’s procedurally-defaulted claims. Now, Leonor seeks to amend
his claims under the belief that they will qualify as “substantial” within the
meaning of Martinez, which Leonor asserts was extended to Nebraska through
Trevino. (See Filing No. 104 at CM/ECF pp. 17, 19, 32.) Trevino was decided over
four years ago, in 2013. Leonor also seeks to avoid the one-year statute of
limitations for filing § 2254 habeas petitions, see 28 U.S.C. § 2244(d)(1). (Id. at
CM/ECF p. 2.) The court will, therefore, deny leave to amend for the compelling
reasons of undue delay, bad faith, or dilatory motive, but also because, as discussed
below, futility of the amendment.

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B. Motion to Reopen Judgment Under Rule 60(b)(6)
Leonor’s Rule 60(b) motion is convoluted because some of his “amended”
claims are actually new claims attacking his conviction for second degree murder
and others appear to be Leonor expanding on arguments for claims in his original
amended habeas petition (Filing No. 12) that challenged the same conviction.1
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.” Gonzalez [v. Crosby], 545 U.S. [524,]
530, 532, 125 S.Ct. 2641 [2005]. “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. at 532 n. 4, 125 S.Ct. 2641. When a Rule 60(b) motion presents a
claim, it must be treated as a second or successive habeas petition
under AEDPA.

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For example, Leonor seeks to amend one of his procedurally-defaulted
claims to include ineffective assistance of trial counsel for failing to inform the
jury of the distinction between intentional manslaughter and second degree murder.
(See Filing No. 104 at CM/ECF pp. 19-28.) These allegations are based upon
Nebraska case law that did not exist at the time of Leonor’s habeas petition. See
State v. Ronald G. Smith, 806 N.W.2d 383 (Neb. 2011) (overruling prior case law
and holding that an intentional killing committed without malice upon a sudden
quarrel constitutes the offense of manslaughter); see also State v. William E. Smith,
822 N.W.2d 401, 416-17 (Neb. 2012) (explaining that the difference between
voluntary manslaughter and second degree murder is the presence or absence of
sudden quarrel provocation not the intent to kill).
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No claim is presented if the motion attacks “some defect in the
integrity of the federal habeas proceedings.” Id. at 532, 125 S.Ct.
2641. Likewise, a motion does not attack a federal court’s
determination on the merits if it “merely 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 n. 4.
Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009); see also Davis v. Norris, 423
F.3d 868, 878-79 (8th Cir. 2005) (petitioner’s motion to remand was the functional
equivalent of a second or successive petition for habeas corpus because he sought
to amend his original petition and obtain an evidentiary hearing). Leonor cannot
escape the strict requirements for second or successive habeas petitions under 28
U.S.C. § 2244(b) through artful pleading and masking a second habeas petition as
a Rule 60(b) motion.2 See similarly, U.S. v. Lambros, 404 F.3d 1034, 1036 (8th
Cir. 2005) (inmates may not bypass the authorization requirement for filing a
second or successive section 2255 petition by purporting to invoke some other
procedure). If Leonor wishes to continue to pursue this matter, he should file a
2

Even if the court considered Leonor’s Rule 60(b) motion as a proper Rule
60(b) motion, the court would deny it for two reasons. One, it is untimely. Rule
60(b) includes the “requirement that the motion ‘be made within a reasonable
time.’” Davis v. Kelley, 855 F.3d 833, 835 (8th Cir. 2017) (quoting Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005)). Leonor filed his motion years after Martinez
and Trevino, which he claims govern his case. (See Filing No. 104 at CM/ECF p.
9.) Leonor has also failed to present the required “extraordinary circumstance,”
necessary to reopen the judgment under Rule 60(b)(6). See Fed. R. Civ. P.
60(b)(6); Davis, 855 F.3d at 835. His procedurally-defaulted claims of ineffective
assistance of trial counsel do not compare to those in Buck. “Buck focused on the
race-based nature of the case and its far reaching impact on the community by the
prospect of a defendant having been sentenced to death because of his race. These
extraordinary facts have no application to the present case.” Davis, 855 F.3d at
836.

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motion with the Eighth Circuit Court of Appeals fully addressing the legal
requirements for successive habeas petitions set forth in 28 U.S.C. § 2244(b).3

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(b)(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless-(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable;
or
(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence;
and
(ii) the facts underlying the claim, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional error,
no reasonable factfinder would have found the applicant guilty
of the underlying offense.
(3)(A) 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).

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III. CERTIFICATE OF APPEALABILITY
A certificate of appealability is required to appeal the denial of any motion
that effectively or ultimately seeks habeas corpus relief. See Lambros, 404 F.3d at
1036. A certificate of appealability cannot be granted unless the petitioner “has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make such a showing, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. Daniel, 529 U.S. 473, 484 (2000).
Leonor has failed to make a substantial showing of the denial of a
constitutional right. The court is not persuaded that the issues raised in his Rule
60(b) motion are debatable among reasonable jurists, that a court could resolve the
issues differently, or that the issues deserve further proceedings. Accordingly, the
court will not issue a certificate of appealability in this case.
IT IS THEREFORE ORDERED that: Leonor’s Motion to Amend (Filing
No. 103) and Motion to Reopen Judgment pursuant to Fed. R. Civ. P. 60(b)(6)
(Filing No. 104) are denied. The court will not issue a certificate of appealability.
Dated this 27th day of September, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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