Garza v. Hansen

Filing 5

MEMORANDUM AND ORDER regarding Petition for Writ of Habeas Corpus 1 filed by Robert Garza. After initial review, Petitioner's habeas corpus petition is denied and dismissed with prejudice. The court will not issue a certificate of appealability in this matter. A separate judgment will be entered in accordance with this order. 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 GARZA,
Petitioner,
vs.

8:18CV276
MEMORANDUM
AND ORDER

BRAD HANSEN,
Respondent.

Petitioner Robert Garza has filed a “Request for Relief of Judgment Under
Rule 60(b)(3)(4)(5)” (filing no. 1), which has been docketed as a petition for writ
of habeas corpus. Conducting an initial review under Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts, I conclude that
the petition should be dismissed.
Garza seeks relief from the March 23, 1984 judgment of the Douglas County
District Court of Nebraska convicting him of kidnapping and attempted second
degree murder and sentencing him to consecutive sentences of life and fifteen to
fifty years imprisonment. (See Filing No. 1 at CM/ECF pp. 8–11.) Garza asserts
the trial court lacked jurisdiction and his convictions and sentences are void
because (1) the trial court failed to vacate his conviction after discovering witness
perjury; 2) the trial court, rather than the jury, found facts that enhanced Garza’s
punishment for kidnapping; (3) Garza was deprived of his right to appeal his
conviction; (4) the prosecutor used peremptory challenges in a racially biased
manner; and (5) the trial court failed to keep the jury together after being charged
as required.
Garza has previously filed petitions for a writ of habeas corpus to set aside
or vacate this same conviction and sentence. (See Garza v. Britton, et al., Case No.
8:07CV338 (D. Neb. 2007) (dismissing petition for writ of habeas corpus brought

pursuant to 28 U.S.C. § 2254 with prejudice as successive); Garza v. Britten, Case
No. 4:03CV3194 (D. Neb. 2003) (same); Garza v. Hopkins, 4:92CV3186 (D. Neb.
1992), aff’d 6 F.3d 782 (8th Cir. 1993)). However, it is clear from the form of the
petition here that Garza seeks relief pursuant to Rule 60(b)(3), (4), and (5) of the
Federal Rules of Civil Procedure1 as a stand-alone request and has not sought to
raise his present request for relief in any of his closed federal habeas cases. Garza
cannot use Rule 60 to attack his state criminal judgment.
“It is well established that a Rule 60(b) motion may not be used to ‘relieve a
party from operation of a judgment of conviction or sentence in a criminal case.’”
United States v. Shenett, No. CRIM.A. 05-431 MJD, 2015 WL 3887184, at *2 (D.
Minn. June 24, 2015) (quoting United States v. Hunt, No. 4:07–CR–121, 2008 WL
4186258, at *1 (E.D.Mo. Sept. 5, 2008) (holding that a defendant’s Rule 60(b)(4)
motion to vacate criminal judgment “is frivolous because a prisoner may not attack
the legality of his conviction through Rule 60(b)”)). Rule 60(b)(4) “is a rule of civil
procedure and thus not available to challenge criminal judgments, nor may it be
used to challenge state judgments of any sort in federal court.” Sherratt v. Friel,
275 F. App’x 763, 767 n.1 (10th Cir. 2008). “At best, in its discretion a district
court may choose to interpret a 60(b)(4) motion attacking a state criminal judgment
as a § 2254 petition, but all the strictures of AEDPA will apply.” Id. (citing
Gonzalez v. Crosby, 545 U.S. 524, 531–35 (2005) (explaining proper role of Rule
60(b) in habeas cases)).

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Rule 60(b) states that, “[o]n motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or proceeding for the following reasons: . . .
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void; [or]
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable . . . .”
Fed. R. Civ. P. 60(b)(3), (4), & (5).

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Construing Garza’s Rule 60 motion as a § 2254 habeas petition, likewise,
affords him no relief. As stated, Garza unsuccessfully challenged this same
judgment of conviction in this court in Case Numbers 8:07CV338, 4:03CV3194,
and 4:92CV3186. Thus, Garza would be required to seek the permission of the
Court of Appeals to commence this successive action. 28 U.S.C. § 2444(b)(2) &
(3)(A). He has not done so, and this matter must be dismissed. Burton v. Stewart,
549 U.S. 147, 152 (2007) (the district court lacked jurisdiction to entertain habeas
petition since prisoner did not obtain an order authorizing him to file second
petition).
Finally, a petitioner cannot appeal an adverse ruling on his petition for writ
of habeas corpus under § 2254 unless he is granted a certificate of appealability. 28
U.S.C. § 2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The
standards for certificates (1) where the district court reaches the merits or (2) where
the district court rules on procedural grounds are set forth in Slack v. McDaniel,
529 U.S. 473, 484–85 (2000). I have applied the appropriate standard and
determined that Petitioner is not entitled to a certificate of appealability.
IT IS THEREFORE ORDERED that Petitioner’s habeas corpus petition
(filing no. 1) is denied and dismissed with prejudice. The court will not issue a
certificate of appealability in this matter. A separate judgment will be entered in
accordance with this order.
Dated this 31st day of July, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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