McPherson v. Frakes

Filing 19

MEMORANDUM AND ORDER - Petitioner's Motion to Reopen Case Under Rule 60(b) (Filing No. 16 ) is denied. Petitioner's pending Motion to Strike (Filing No. 17 ) is denied as moot. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROGER MCPHERSON,
Petitioner,

8:15CV162

vs.
SCOTT R. FRAKES, and MICHAEL L.
KENNEY,

MEMORANDUM
AND ORDER

Respondents.
This closed federal habeas matter under 28 U.S.C. § 2254 is before the court
on Petitioner Roger McPherson’s (“Petitioner” or “McPherson”) motion for postjudgment relief under Rule 60(b) of the Federal Rules of Civil Procedure. (Filing
No. 16.) The motion will be denied as untimely.
I. BACKGROUND
On February 25, 2016, the court dismissed McPherson’s Petition for Writ of
Habeas Corpus which challenged his 2001 conviction, after a jury trial, for two
counts of first degree sexual assault on a child and two counts of child abuse.
(Filing No. 14; Filing No. 15.) The court determined the petition was untimely
under 28 U.S.C. § 2244(d)(1)(A), and that McPherson made no showing of actual
innocence to excuse the bar of the statute of limitations under the miscarriage-ofjustice exception. In addition, the court determined McPherson was not entitled to
equitable tolling of the limitations period as he had not demonstrated that there
were extraordinary circumstances beyond his control making it impossible to file
his federal petition. (Filing No. 14.) The court declined to issue a certificate of
appealability, and McPherson did not appeal the court’s dismissal of his habeas
petition.

On October 17, 2017, McPherson filed the present motion. He asks the
court to reopen his habeas case under Rule 60(b)(2) and (6) of the Federal Rules of
Civil Procedure and sets forth several allegations of “newly discovered evidence”
in support of his motion. All but one of the allegations of newly discovered
evidence involve “prospective testimony” of various witnesses. The remaining
allegation asserts various errors committed by McPherson’s trial, appellate, and
postconviction counsel.
II. DISCUSSION
A. Standard for Review of 60(b) Motion in Closed Habeas Proceeding
A prisoner may file a second or successive petition under § 2254 only after
obtaining authorization to do so from the appropriate United States Court of
Appeals. 28 U.S.C. § 2244(b)(3). 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 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,]
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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
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. Petitioner’s Motion is Not a Successive Petition
McPherson alleges he has newly discovered “prospective testimony” from
several different witnesses that could not have been discovered at trial or direct
appeal and would demonstrate his actual innocence. The evidence alleged by
McPherson includes testimony from an expert witness regarding observations of
the victims, McPherson’s daughters; testimony from one of his daughters recanting
her earlier statements; testimony from hostile witnesses regarding inconsistencies
in their previous statements; and testimony regarding discovery of missing pages
of trial testimony in the state court Bill of Exceptions. McPherson also asserts
allegations of wrongdoing and ineffective assistance by his trial, appellate, and
postconviction counsel.
Liberally construed, McPherson seeks to challenge the court’s determination
that McPherson made no showing of actual innocence to excuse the bar of the
statute of limitations. To that extent, McPherson’s motion does not attack the
court’s determination on the merits and does not constitute a second or successive

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petition under 28 U.S.C. § 2254. Thus, the court will analyze the motion under
Rule 60(b).
C. Petitioner’s 60(b) Motion is Untimely
McPherson brings his motion under Rule 60(b)(2) and (6). Under
subsection (2), a court may grant relief from a final judgment for “newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b).” Fed. R. Civ. P.
60(b)(2). Moreover, motions pursuant to Rule 60(b)(2) must be brought “no more
than a year after the entry of the judgment or order or the date of the proceeding.”
Fed. R. Civ. P. 60(c)(1). McPherson’s motion is untimely as it was filed almost
one year and eight months after the court dismissed his habeas petition. Thus,
McPherson is precluded from seeking relief under Rule 60(b)(2) because his
motion is clearly untimely. Id.; see Fuller v. United States, No. 4:07-CV-34 CAS,
2013 WL 3480303, at *8 (E.D. Mo. July 10, 2013) (even if petitioner’s motion not
construed as a successive habeas petition, claims under Rule 60(b)(2) and (3)
would be time-barred as petitioner filed motion two years after entry of judgment).
In addition, McPherson cannot avoid the one-year time limit for motions
based on Rule 60(b)(2) by asserting Rule 60(b)(6) as the basis for relief. Rule
60(b)(6) is the catch-all provision which permits relief from a final judgment for
“any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6); United States v.
Dakota Cheese, Inc. (In re Matter of a Grand Jury Subpoena Directed to Dakota
Cheese, Inc.), 923 F.2d 576, 577 (8th Cir.1991) (motion based on newly
discovered evidence is governed by Rule 60(b)(2) and may not be brought after
one year under Rule 60(b)(6)). “The provisions of Rule 60(b) are mutually
exclusive, and if the reason offered for relief falls under on[e] of the more specific
subsections of Rule 60(b)(1)-(5), the reason will not justify relief under the catchall provision of 60(b)(6).” Fuller, supra at *8 (citing Liljeberg v. Health Servs.
Corp., 486 U.S. 847, 863 n. 11 (1988)).

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Even if the motion was timely, the court would find McPherson’s allegations
of newly discovered evidence insufficient to warrant relief from judgment in this
case. Just as the court stated in its Memorandum and Order dismissing his habeas
petition, McPherson does not come close to demonstrating actual innocence under
the rigorous standard of Schlup v. Delo, 513 U.S. 298 (1995). See McQuiggin v.
Perkins, 133 S.Ct. 1924 (2013). McPherson has only presented bare allegations of
newly discovered evidence, but none of the actual evidence. As the Eighth Circuit
Court of Appeals has recognized, a habeas petitioner’s “bare, conclusory assertion
that he is actually innocent is not sufficient to invoke the [actual innocence]
exception.” Weeks v. Bowersox, 119 F.3d 1342, 1352–53 (8th Cir. 1997).
IT IS THEREFORE ORDERED that:
1.
is denied.
2.

Petitioner’s Motion to Reopen Case Under Rule 60(b) (Filing No. 16)

Petitioner’s pending Motion to Strike (Filing No. 17) is denied as

moot.
Dated this 31st day of January, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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