Harden v. Gage et al

Filing 49

MEMORANDUM AND ORDER - Petitioner's Motion to Alter or Amend Judgment (filing 46 ), construed as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(6), is denied. Petitioner's pending Motion for Status (filing 48 ) is denied as moot. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT HARDEN,
Petitioner,

8:13CV356

vs.
MEMORANDUM AND ORDER
BRIAN GAGE, Warden; and ROBERT
HOUSTON, Director of Department of
Corrections;
Respondents.
This closed federal habeas matter is before me1 on Petitioner Robert
Harden’s (“Petitioner” or “Harden”) Motion to Alter and Amend Judgment which
the court construes as a motion for relief from judgment pursuant to Fed. R. Civ. P.
60(b). (Filing 46.)
I. BACKGROUND
On November 29, 2013, Harden filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 challenging his 2006 conviction for criminal
conspiracy to commit first degree murder. (Filing 1.) The late Honorable Laurie
Smith Camp conducted an initial review of the petition, identified five potentially
cognizable claims, and entered a progression order. (Filing 6.) Harden moved for
the appointment of counsel on April 30, 2014, which the court denied. (Filings 7 &
10.)
On May 14, 2014, Respondents filed a Motion for Summary Judgment
(filing 13), the relevant state records (filing 12), and a brief in support (filing 15).
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The matter was reassigned to me due to the unexpected and untimely death of
Senior District Judge Laurie Smith Camp. (Filing 47.)

Respondents moved for summary judgment in their favor on the grounds that
Harden’s claims in his habeas petition were barred by the limitations period set
forth in 28 U.S.C. § 2244(d).
On May 15, 2014, Harden filed a motion to disqualify Judge Smith Camp
“due to [b]ias and [p]rejudice” based on Judge Smith Camp’s past employment
with the Nebraska Department of Correctional Services, the Nebraska Attorney
General’s Office, and past denial of habeas relief to another petitioner. (Filing 16.)
Subsequently, on June 24, 2014, Harden filed a second motion for the appointment
of counsel. (Filing 25.) Judge Smith Camp denied Harden’s motion to disqualify
and his motion for the appointment of counsel on June 26, 2014. (TEXT ORDER
No. 26; Filing 27.)
After Harden filed a response (filing 17) to Respondents’ summary
judgment motion and Respondents filed their reply brief (filing 18), the court
entered a Memorandum and Order (filing 33) and Judgment (filing 34) on
September 2, 2014, granting Respondents’ motion for summary judgment and
dismissing Harden’s habeas petition with prejudice. The court determined
Harden’s petition was untimely under 28 U.S.C. § 2244(d) and neither equitable
tolling nor the actual innocence exception applied. Harden appealed to the Eighth
Circuit Court of Appeals which denied his application for a certificate of
appealability and dismissed his appeal. (Filing 42.)
On March 11, 2021, Harden filed the present motion to “Alter and Ammend
Judgement” which he brings “under the ‘Extraordinary Circumstances’ of Federal
Rule of C[ivil] Procedure 60(b)(6).” (Filing 46 (spelling as in original).) Liberally
construed, Harden argues he was denied consideration of his habeas claims on their
merits because Judge Smith Camp dismissed his habeas petition and denied him a
certificate of appealability based on bias and in retaliation for Harden’s filing of his
“Motion for Recusal.” (Id. at CM/ECF p. 2.) Harden asks the court to accept the
motion and “exonerate Petitioner from the conviction handed down by the Douglas
County District Court on December 5, 2006.” (Id. at CM/ECF pp. 2–3.)
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II. DISCUSSION
A. Standard for Review of 60(b) Motion in Closed Habeas Proceeding
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 28 U.S.C. § 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 under 28 U.S.C. § 2244(b)(3) or, in
its discretion, transfer the purported Rule 60(b) motion to the Court of Appeals.
Boyd, 304 F.3d at 814.
As the Eighth Circuit has explained,
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 [(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
[Antiterrorism and Effective Death Penalty Act].
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
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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) (emphasis in original).
B. Harden’s Motion
Here, Harden argues that Judge Smith Camp was biased and improperly
dismissed his habeas petition in retaliation for his filing of a “Motion for Recusal.”
Liberally construed, Harden seeks relief from the dismissal and to have his habeas
claims considered on the merits. The court concludes that Harden’s motion does
not assert any claims, but rather attacks Judge Smith Camp’s previous ruling based
on the statute-of-limitations bar that precluded a merits determination. Therefore,
Harden’s motion is properly considered as a motion for relief from judgment under
Rule 60(b).
Under Rule 60(b)(6), a court may grant a party relief from a judgment for
“any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Relief under this
catchall provision is available only in “extraordinary circumstances.” Buck v.
Davis, 137 S. Ct. 759, 777–78 (2017) (quoting Gonzalez v. Crosby, 545 U.S. 524
(2005)). Upon careful review, the court finds Harden has failed to demonstrate any
extraordinary circumstances that would entitle him to relief from the judgment
under Rule 60(b)(6). Harden’s conclusory allegations of Judge Smith Camp’s
“bias” are unsupported by any facts in the record and based entirely on the mere
fact of her previous employment with the state of Nebraska and/or decisions made
in cases that have no discernible relation to Harden. Moreover, there is nothing in
the record to suggest Judge Smith Camp acted “in retaliation” or “showed
intentional bias” when she granted Respondents’ motion for summary judgment
and dismissed Harden’s petition. I have carefully reviewed the record in this case
and agree wholeheartedly with Judge Smith Camp’s conclusion that Harden’s
petition was barred by the one-year statute of limitations in 28 U.S.C. § 2244(d).
Accordingly, I will not grant Harden any relief from the judgment in this matter.
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IT IS THEREFORE ORDERED that:
1.
Petitioner’s Motion to Alter or Amend Judgment (filing 46), construed
as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(6), is denied.
2.

Petitioner’s pending Motion for Status (filing 48) is denied as moot.

Dated this 30th day of April, 2021.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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