MOSES, et al v. POLK
Filing
66
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 07/17/2012. RECOMMENDED that: (1) Petitioner's Motion for Relief from Judgment (Docket Entry 58 ) be construed as a Successive Pet ition for a Writ of Habeas Corpus under 28 U.S.C. § 2254; and (2) Petitioner's Motion be TRANSFERRED to the United States Court of Appeals for Fourth Circuit for a determination of the propriety of pre-filing authorization. (3) Respondent's Motion to Dismiss (Docket Entry 60 ) be DENIED WITHOUT PREJUDICE to re-filing should the Fourth Circuit Court of Appeals deny pre-filing authorization. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ERROL DUKE MOSES,
Petitioner,
v.
GERALD BRANKER, Warden, Central
Prison, Raleigh, North Carolina,
Respondent.
)
)
)
)
)
)
)
)
)
)
1:03CV910
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Errol Duke Moses (“Petitioner”) seeks relief from a prior
judgment of this Court pursuant to Rule 60(b) of the Federal Rules
of Civil Procedure. (Docket Entry 58.)
Respondent has filed a
motion to dismiss Petitioner’s motion on the grounds that it
constitutes a successive petition for a writ of habeas corpus,
which requires pre-filing authorization (“PFA”) from a three-judge
panel of the United States Court of Appeals for the Fourth Circuit.
(Docket Entry 60.) Petitioner has responded to Respondent’s motion
(Docket Entry 65) and the time for any reply has passed without any
reply.
(See Docket Entries dated Nov. 18, 2011, to present).
For
the reasons that follow, Petitioner’s Motion for Relief from
Judgment constitutes a successive § 2254 petition for a writ of
habeas corpus for which Petitioner must obtain PFA.
Accordingly,
it is recommended that the Motion for Relief from Judgment be
transferred to the Fourth Circuit pursuant to 28 U.S.C. § 1631.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Following his conviction for two counts of murder and the
imposition of a death sentence, Petitioner appealed, whereupon the
North Carolina Supreme Court affirmed his convictions and sentence.
See State v. Moses, 350 N.C. 751, 517 S.E.2d 853 (1999).
The
United
for
States
certiorari.
On
Supreme
Court
denied
Petitioner’s
petition
Moses v. North Carolina, 528 U.S. 1124 (2000).
September
15,
2000,
Petitioner
filed
a
Motion
for
Appropriate Relief (“MAR”) in the Superior Court of Forsyth County.
(Docket Entry 12, Tab 5.)
Petitioner later filed an Amendment to
his MAR.
In orders dated August 17, 2001, and
(Id., Tab 7.)
September 6, 2001, the court denied the MAR.
(Id., Tabs 9, 11.)
The North Carolina Supreme Court denied review of the MAR orders.
State v. Moses, 356 N.C. 442, 573 S.E.2d 160 (2002).
On April 7,
2003, the United States Supreme Court denied a petition for writ of
certiorari to review the state court’s denial of Petitioner’s MAR
claim that challenged the use of short-form murder indictments.
(Docket Entry 12, Tab 17.)
Petitioner next filed a petition for a writ of habeas corpus
in this Court pursuant to 28 U.S.C. § 2254.
(Docket Entry 6.)
Petitioner raised two constitutional claims, alleging violations of
his Sixth Amendment right to the effective assistance of counsel.
(Id. at 5-6.)
On July 27, 2005, United Stated Magistrate Judge
Russell A. Eliason recommended denial of the petition for writ of
2
habeas corpus.
(Docket Entry 30.)
By order dated October 18,
2005, United States District Judge William L. Osteen, Sr. adopted
Magistrate Judge Eliason’s recommendation and denied the petition.
(Docket Entry 36.)
The Fourth Circuit affirmed the denial of the
petition for writ of habeas corpus and denied rehearing.
Moses v.
Branker, No. 06-8, 2007 WL 3083548 (4th Cir. Oct. 23, 2007)
(unpublished).
The United States Supreme Court denied certiorari.
Moses v. Branker, 554 U.S. 924 (2008).
Petitioner filed a third MAR in Forsyth County Superior Court
on October 1, 2009.
(Docket Entry 58, Attach. 1.)1
The Superior
Court conducted an evidentiary hearing on March 18, 2010, and
denied the motion by order dated July 9, 2010.
(Id., Attach. 2.)
The North Carolina Supreme Court denied a petition for certiorari
on March 10, 2011.
State v. Moses,___ N.C. ___, 706 S.E.2d 246
(2011).
On September 23, 2011, Petitioner filed the present motion for
relief from judgment, pursuant to Fed. R. Civ. P. 60(b)(6), or, in
the alternative, Rule 60(d)(3).
(Docket Entry 58.)
At Petitioner’s trial, Casey McCree implicated Petitioner in
the murders of both Jacinto Dunkley and Ricky Griffin.
1
(See
Petitioner had previously filed a second MAR in state court which
is not relevant to this action. (See Docket Entry 34, Ex. 1.) This
second MAR raised a claim of ineffective assistance of trial counsel for
an alleged failure to investigate and present mitigation evidence. (Id.)
The second MAR was denied from the bench on December 20, 2005; a written
order followed on March 3, 2006. (See Docket Entry 58, MAR III, ¶ 8.)
The North Carolina Supreme Court denied the Petition for Writ of
Certiorari from this order on November 16, 2006. (Id.)
3
generally Docket Entry 12, Trial Tr. 243-59, 790-93.)2
Prior to
trial, defense counsel sought, through discovery, any information
regarding a promise of a deal made by the State in exchange for
McCree’s testimony. (Id., Attach. 11, Mot. Disc. Impeaching Info.)
The State did not provide any such information before trial.
(See
Docket Entry 58, Attach. 12, ¶ 8.) At trial, McCree testified that
he had no deal with the State and that the State had not offered
him anything in return for his testimony. (Trial Tr. 803, 874-75.)
The lead detective on the case, Mike Barker, likewise testified
that the State had not offered “anything” to McCree.
1108-09.)
(Trial Tr.
During closing argument, Assistant District Attorney
(“ADA”) Vincent Rabil stated: “There is absolutely no evidence of
any deal with Casey McCree, ladies and gentlemen.
None.
That is
pure speculation. There is no evidence of that.” (Trial Tr. 123334.)
In Petitioner’s first MAR, he alleged that (1) the State had
created a false impression that it reserved the right to prosecute
McCree notwithstanding his testimony; and (2) trial counsel was
ineffective for failing to adequately cross-examine State witnesses
concerning the nature and extent of any promises made to McCree by
the
Winston-Salem
Police
Department,
the
Office, or any other governmental agency.
2
District
Attorney’s
(See Docket Entry 12,
The trial transcript appears in the state court documents filed
by the State in Support of its Answer to the Petition for Writ of Habeas
Corpus. (Docket Entry 12.) It will be referred to as “Trial Tr.”
4
Tab 7, MAR I, September 15, 2000, Claims V-VI.)
In response, the
State presented affidavits from Detective Barker, Detective Mike
Rowe, ADA Rabil, and McCree.
Detectives Barker and Rowe denied
knowledge of any deal with McCree. (See Docket Entry 58, Attach. 7,
10.)
In his affidavit, dated January 29, 2001, ADA Rabil stated
that “[n]o promises or inducements or deals were ever made by the
[State] to Casey McCree in return for any statements he made” to
detectives and McCree “never asked [ADA Rabil] for immunity or any
deal.”
(Id., Attach. 8, ¶¶ 4, 5.)
ADA Rabil further stated that
at some point prior to trial Detective Barker called him and, at
McCree’s request, inquired about “immunity.” (Id. ¶ 6.) ADA Rabil
stated that he told Detective Barker that the State would not grant
immunity from anything to McCree because he had already made
statements to Detectives Barker and Rowe without promise of deals
or immunity. (Id.) According to his 2001 affidavit, ADA Rabil was
not asked again about immunity for McCree. (Id.)
In his affidavit dated January 30, 2001, Casey McCree stated
that he “was never offered immunity” and no promises were made to
him in exchange for his statements or testimony in the Dunkley and
Griffin murder cases.
(Id., Attach. 9.)
McCree also confirmed
that several months after he gave his statements to the police he
asked Detective Barker about “getting immunity” and that, after
checking with the prosecutors, Detective Barker told McCree that he
5
would not receive immunity because he had already cooperated and
made several statements “without a grant of immunity.” (Id.)
In response to the first MAR, the State also submitted the
affidavit of J. Clark Fischer, one of Petitioner’s trial attorneys.
(Id., Attach. 12.)3
In his affidavit, Fischer stated that he “had
no evidence that the State had entered into any deal or agreement
with Casey McCree in exchange for his testimony at trial” and that
McCree, Barker and Rowe were not going to admit under crossexamination that any deal in fact existed.
(Id. ¶ 8.)
The first
MAR court found no evidence in the record of any agreement or deal
made in exchange for McCree’s testimony. (Id., Attach. 14, Amended
Order denying MAR, Oct. 12, 2001.)
Petitioner’s habeas counsel met with Rabil4 on April 30, 2009.
(Id., Attach. 3, MAR Tr. at 25.)5
Counsel’s written notes from
this meeting show that, for the first time, Rabil stated there was
“no deal” but that the prosecutors told McCree that he would have
to “trust them” that he would not be charged if he testified. (Id.,
Attach.
15.)
Following
this
meeting,
Petitioner’s
attorneys
3
Mr. Fischer also served as Petitioner’s appellate counsel in his
direct appeal. (Docket Entry 58, Attach. 12, ¶ 1.)
4
At the time of this meeting, Rabil no longer served as an ADA.
(Id., Attach. 23.) By the time of the evidentiary hearing in 2010, Rabil
was employed as an Assistant Capital Defender for the State of North
Carolina. (Id., Attach. 3, MAR Tr. at 11.)
5
The page numbers cited from the MAR Transcript correlate to the
original transcript pages, rather than the Docket Entry 58 exhibit page
numbers which are sequential through several different documents attached
to the Motion for Relief from Judgment.
6
provided Rabil with a written summary of their notes from the
meeting and a draft affidavit for Rabil to consider.
(Id.,
Attachments 16-23, E-mails between Ken Rose and Rabil.) Rabil made
several changes to the notes but he did not change the section
containing his declaration that he had told McCree that he would
just have to trust Rabil that McCree would not be prosecuted if he
testified.
(Id., Attach. 3, MAR Tr. at 27-30.)
Subsequently, in
July 2009, Rabil signed a sworn affidavit in which he stated:
“[McCree] was never charged but there was no deal.
We just told
[McCree] that he would have to trust us that he would not be
charged if he testified.”
(Id., Attach. 25.)
Based on Rabil’s affidavit, counsel prepared a draft third MAR
and provided a courtesy copy to Rabil before filing.
Attachments 26, 27.)
(Id.,
Rabil then informed Petitioner’s post-
conviction counsel that he wanted to make one change to his July
2009 affidavit; specifically, the change read “Casey was never
charged and there was no written deal.”
Supp. Aff. (emphasis added).).6
6
(Id., Attach. 28, Rabil
Rabil did not change the part of
As relevant here, this September 2009 affidavit from Rabil reads:
I later met with [McCree] at least one other time outside the
hospital at his home and talked with him by phone. [McCree]
asked if he could get a “letter of immunity.”
I recall
telling him that he was not charged with anything, that he had
already told us what happened. [McCree] was never charged and
there was no written deal. Without complying with the North
Carolina statutory requirements for an official grant of
immunity I did not believe any legal reason existed which
would have prevented another prosecutor or law enforcement
officer from later charging him.
I told [McCree] that he
7
his statement where he told McCree that he would have to trust them
that he would not be charged if he testified.
(Id. ¶ 3.)
In the third MAR, filed on October 1, 2009, Petitioner alleged
that Rabil’s affidavit showed that a promise of immunity was made
to Casey McCree. (Id., Attach. 27, MAR III ¶ 17.)
Petitioner
alleged that he could not have discovered the factual predicate for
his motion because the State actively and deceptively hid the
promise of immunity made to McCree.
(Id. ¶ 19.)
The state MAR court held an evidentiary hearing in 2010.
(Id., Attach. 3, MAR Tr.)
at 11, 96.)
Rabil and McCree both testified.
(Id.
Rabil testified that he had no deal with McCree and
that he never took any formal steps, as required under North
Carolina law, to offer immunity to McCree.
(Id. at 61.)
Rabil
specifically disavowed the facts suggesting that he told McCree
that he would just have to trust them (the prosecutors) that he
(McCree) would not be charged if he testified.
(Id. at 67.)
Rabil
testified that he never verbally stated to McCree that he would
just have to trust them that he would not be charged, though Rabil
acknowledged that his 2009 affidavit reads otherwise.
(Id. at 66,
71.) Rabil stated that those words used in the affidavit reflected
would have to “trust us” that he would not be charged if he
testified. In my experience, this was a common practice among
prosecutors to obtain testimony without having to formally
agree to a deal where no formal grant of immunity was being
offered.
(Docket Entry 58, Attach. 28.)
8
his “subjective thoughts,” not what he actually told McCree.
at 72.)
(Id.
When asked by the court how to reconcile his 2001
affidavit with his 2009 affidavit, as well as his testimony in the
hearing, Rabil acknowledged the conflict and merely stated that he
could not really explain it other than to say that when he “said
‘you just have to trust us,’ [he] was just stating the obvious
about someone who was going to testify without immunity or a deal.”
(Id. at 79-80.)
Rabil’s co-counsel, David Spence, testified that he was not
aware of any deal made between the State and McCree for McCree’s
testimony.
(Id.
at
88-90.)
Similarly,
McCree
testified,
consistent with his previous testimony, that he received no deal in
exchange for his testimony.
(Id. at 97, 101.)
The MAR court found “no credible evidence . . . that promises
were made to Mr. McCree by anybody that he would not be charged if
he did not testify.”
(Id., Attach. 2, MAR Order at 16.)
Moreover,
the court specifically found the testimony of both McCree and
Spence credible and relied on it, rather than any evidence from
Rabil.
had
(Id. at 16, 18.)
“failed
to
The court went on to hold that Petitioner
establish
that
there
existed
any
‘deal’
or
agreement, secret or otherwise, between Mr. Rabil and Mr. McCree
for the testimony of Mr. McCree at Defendant’s trial.”
28.)
The
court
further
concluded
that
Petitioner
(Id. at
had
not
established a violation of Brady v. Maryland, 373 U.S. 83 (1963),
9
and, furthermore, that Petitioner had not met the requirements
under North Carolina law for obtaining a new trial based on newly
discovered evidence.
on July 9, 2010.
II.
(Id. at 32-36.)
The court dismissed the MAR
(Id. at 40-41.)
RULE 60(b) MOTION OR SECOND/SUCCESSIVE HABEAS PETITION
As a threshold matter, this Court must determine whether
Petitioner’s instant Rule 60(b) motion constitutes an unauthorized
and successive § 2254 petition attacking Petitioner’s conviction or
sentence. If so, this Court lacks jurisdiction to consider it. On
the other hand, if the filing qualifies as a proper motion under
Rule 60(b) on the grounds that extraordinary circumstances require
relief, this Court has jurisdiction to consider the motion.
Federal Rule of Civil Procedure 60(b) “allows a party to seek
relief from a final judgment, and request reopening of his case,
under a limited set of circumstances, including fraud, mistake, and
newly discovered evidence.”
Gonzalez v. Crosby, 545 U.S. 524, 528
(2005). Petitioner here relies on Rule 60(b)(6), which permits a
party to seek relief from a final judgment, and request reopening
of his case, “when the movant shows any . . . reason justifying
relief from the operation of the judgment” other than the more
specific reasons enumerated in Rule 60(b)(1)-(5).7
7
Rule 60(b) provides in relevant part:
On motion and upon such terms as are just, the court may relieve a
party. . . from a final judgment, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2)
newly discovered evidence which by due diligence could not have been
10
A Rule 60(b) movant faces several procedural requirements.
First, a party seeking relief under Rule 60(b) must “have a
meritorious claim or defense and . . . the opposing party [must]
not be unfairly prejudiced by having the judgment set aside.”
Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011).
Second, a
Rule 60(b) motion must be filed within a “reasonable time.”
R. Civ. P. 60(c).
Fed.
Additionally, relief under the catch-all
provision of Rule 60(b)(6) may be granted only in “extraordinary
circumstances.”
Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 864 n.11 (1988).
those]
that
create
judgment was unjust.”
a
“Extraordinary circumstances [are
substantial
danger
that
the
underlying
Murchison v. Astrue, Nos. 10-1200, 11-1462,
2012 WL 475581, at *3 (4th Cir. Feb. 15, 2012) (unpublished)
(internal quotation marks and citations omitted).
Rule 60(b)(6) and Rule 60(b)(1)-(5) are mutually exclusive;
where a claim could arise under sub-sections (b)(1)-(5), a movant
may not invoke the broader “any reason that justifies relief”
clause of Rule 60(b)(6).
Id.
Finally, a Rule 60(b) motion may not
discovered in time to move for a new trial under Rule 59(b); (3) fraud
. . ., misrepresentation, or misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other reason justifying
relief from the operation of the judgment.
The motion shall be made
within a reasonable time, and for reasons (1), (2), and (3) not more than
one year after the judgment, order, or proceeding was entered or taken.
11
serve as a substitute for raising issues in an appeal from the
judgment.
Aikens, 652 F.3d at 501.
The interplay between Rule 60(b) and the Anti-terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244,
creates additional tension in this case.
The Federal Rules of
Civil Procedure apply to habeas proceedings only to the extent that
they are not inconsistent with any statutory provisions or the
rules governing habeas cases.
2254 Cases.
Rule 11, Rules Governing Section
AEDPA restricts state prisoners’ ability to file
successive applications for habeas relief under 28 U.S.C. § 2254 by
requiring that a petitioner obtain the approval of the appropriate
court of appeals before filing a second or successive habeas
petition.
8
See 28 U.S.C. § 2244(b).8
Section 2244 provides, in relevant part:
(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
12
The
limitations
of
§
2244(b)
apply
only
to
a
“habeas
application under §2254,” i.e., an application on “behalf of a
person in custody pursuant to the judgment of a State court,” 28
U.S.C § 2254(b)(1).
Both the text of § 2254 and the relief it
provides indicate that the term “second or successive” applies to
the judgment challenged. In this regard, the United States Supreme
Court has held that for purposes of § 2244(b), “an ‘application’
for habeas relief is a filing that contains one or more ‘claims.’”
Gonzalez, 545 U.S. at 530. A “claim” is “an asserted federal basis
for relief from a state court’s judgment of conviction.”
Id.
For
example, a motion attacking the federal court’s merits resolution
of a previously raised claim qualifies as a “claim” under §
2244(b).
Id.
Likewise, a motion seeking to add a new ground for
relief represents a “claim” under § 2244(b).
Id.
Prior to Gonzalez, some courts held that any motion labeled as
one pursuant to Rule 60(b) remains fully viable in the habeas
context and unaffected by the limitations of AEDPA, whereas others
treated any motion under Rule 60(b) as a second or successive
habeas petition even if the motion contained no constitutional
claim at all.
Compare, e.g., Rodriquez v. Mitchell, 252 F.3d 191,
198 (2d Cir. 2001) (holding that motion pursuant to Rule 60(b),
brought after district court’s ruling on initial habeas petition,
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.
13
does not constitute second or successive habeas petition), with
Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998) (ruling that
successive petition restrictions contained in 28 U.S.C. § 2244(b)
apply to Rule 60(b) motions), and McQueen v. Scroggy, 99 F.3d 1302,
1335 (6th Cir. 1996) (agreeing with view that Rule 60(b) motion in
habeas context is “practical equivalent of a successive habeas
corpus petition”).
To a great extent, Gonzalez clarified the
relationship between § 2244 and Rule 60(b).
Specifically,
the
Supreme
Court
held
that
§
2244(b)’s
standards apply to a filing labeled as a Rule 60(b) motion if the
motion contains a “claim” within the meaning of § 2244 - that is,
“an asserted federal basis for relief from a state court’s judgment
of conviction.”
Gonzalez, 545 U.S. at 530.
The Supreme Court
noted that a purported Rule 60(b) motion which neither adds a new
ground for relief, nor attacks a federal court’s prior resolution
of grounds for relief on the merits, but rather raises some defect
in the integrity of the federal proceedings, presents a viable
“claim” for purposes of Rule 60(b).
a
habeas
petitioner’s
Id. at 532.
post-judgment
filing
In other words,
constitutes
a
permissible Rule 60(b) motion if “it does not assert, or reassert,
claims of error in the movant’s state conviction.”
Id. at 538.
The plain language of Rule 60(b) states that a court may
relieve a party from a “final judgment, order or proceeding.”
Therefore, this Court first must identify the judgment from which
14
Petitioner seeks relief. Clearly, Petitioner seeks relief from the
Order entered by Judge Osteen adopting Magistrate Judge Eliason’s
Recommendation and dismissing all claims in the petition for writ
of habeas corpus. However, Petitioner does not attack “some defect
in the integrity of the federal habeas proceedings;” rather, he
argues that the state court conviction was obtained under deceptive
or fraudulent circumstances.
In the present procedural context,
this Court does not have jurisdiction to correct an error made in
the state court proceeding.
In essence, Petitioner seeks to bring a new claim (which this
Court did not address in the first habeas proceeding) challenging
the state court conviction on the merits.
As such, Petitioner’s
Rule 60(b) motion constitutes a successive habeas petition for
which he must obtain pre-filing authorization from the Fourth
Circuit.
Put
another
way,
Petitioner’s
Rule
60(b)
motion
represents a new collateral attack on the underlying criminal
conviction in state court, in which Petitioner asserts a federal
basis for relief from the state court’s judgment of conviction.
Although labeled a Rule 60(b) motion, such a filing more properly
qualifies as a successive habeas petition.
Petitioner objects to the State’s motion to dismiss on the
grounds of successiveness, arguing that “fraud on the federal
habeas court” is an example of an issue identified in Gonzalez as
going not to the merits but rather to “the integrity of the habeas
15
proceedings.”
(Docket Entry 65, Pet. Resp. to Mot. to Dismiss 3.)
However, Petitioner has pointed to no defect in the integrity of
the federal habeas proceedings that would render his Rule 60(b)
motion permissible. The issue of whether or not the State withheld
evidence of a “secret deal” simply was neither raised nor addressed
in the prior habeas action.
The order in the prior habeas matter addressed two substantive
issues in the context of an ineffective assistance of counsel
claim.9
In his first claim, Petitioner contended that he was
denied his Sixth Amendment right to the effective assistance of
counsel because his trial counsel allegedly conceded guilt to
first-degree felony murder with regard to the Dunkley murder count
without Petitioner’s consent.
(Docket Entry 6 at 5.) Magistrate
Judge Eliason discussed the procedural bar issue but went on to
address the merits of the claim, finding that Petitioner had shown
neither deficient performance on the part of trial counsel nor
prejudice from counsel’s actions.
(Docket Entry 30 at 23-25.)
Petitioner’s second ineffective assistance of counsel claim
alleged failure by counsel to adequately investigate and present
mitigation evidence during the sentencing phase of the trial.
(Docket Entry 6 at 6.)
Magistrate Judge Eliason noted that
9
Petitioner included three grounds for relief in his first habeas
petition. However, as noted by Magistrate Judge Eliason, grounds one and
two in the petition involved the same claim. Ground one addressed a
threshold procedural default issue, while ground two addressed the same
claim on the merits. (See Docket Entry 30 at 11 n.1.)
16
Petitioner had drastically broadened this claim in federal court
from the claim he had raised before the state MAR court regarding
his
trial
counsel’s
failure
to
call
specific
witnesses
in
mitigation. (Docket Entry 30 at 27, 29-30.) In the federal claim,
Petitioner alleged a broad failure to investigate his childhood, as
well as failure to present evidence of his allegedly redeeming
character traits.
Magistrate
Judge
(See, e.g., Docket Entry 13 at 22, 27-32.)
Eliason
found
that
the
majority
of
this
ineffective assistance claim was not “fairly presented” to the
state court and, as such, was not exhausted in state court and,
therefore, procedurally barred.
(Docket Entry 30 at 31-32.)
Magistrate Judge Eliason thus limited his review of this claim to
“the theory and facts raised in [Petitioner’s] MAR.”
(Id. at 33.)
On the merits, Magistrate Judge Eliason found that the state
court’s decision that Petitioner had failed to establish deficient
performance and resulting prejudice was neither contrary to nor an
unreasonable application of established federal law as determined
by the United States Supreme Court.
(Id. at 36.)
Because Petitioner’s initial federal habeas application never
raised the issue of the alleged secret deal made by the State with
Casey McCree, his Rule 60(b) motion raises a new claim that
constitutes a successive habeas application barred by AEDPA.
28 U.S.C § 2244(b)(2).
See
Essentially, Petitioner attacks his state
court conviction because of the fraud perpetrated on the state
17
court; he does not seek to challenge any of this court’s findings
in the first habeas proceeding.
AEDPA provides that, in order to
pursue this claim, Petitioner must obtain pre-filing authorization
from the Fourth Circuit, which he has not done.
Court
lacks
jurisdiction
to
consider
As such, this
Petitioner’s
clearly
successive habeas application.
Petitioner also asserts entitlement to relief, separate from
a standard Rule 60(b) claim, pursuant to Rule 60(d)(3) based upon
fraud on the court.
(d)
Rule 60(d) provides, in relevant part:
Other Powers to Grant Relief This rule
does not limit a court’s power to:
. . .
(3) set aside a judgment for fraud on the
court.
The elements of a claim of fraud upon the court are not
precise.
The Fourth Circuit has said that fraud upon the court is
“typically confined to the most egregious cases, such as bribery of
a judge or juror, or improper influence exerted on the court by an
attorney, in which the integrity of the court and its ability to
function impartially is directly impinged.”
Great Coastal Express
v. International Bhd. of Teamsters, Chauffeurs, Warehousemen and
Helpers of Am., 675 F.2d 1349, 1355-56 (4th Cir. 1982).
The
decision in Great Coastal requires that a party asserting a “fraud
upon the court” claim at the very least establish a material and
deliberate fraud.
Id. at 1353-56. Relief under this “savings
18
clause”
of
Rule
60
is
not
granted
lightly.
Id.
at
1356.
Independent actions seeking to vacate a judgment are reserved for
“‘injustices which, in certain instances, are deemed sufficiently
gross to demand a departure’ from rigid adherence to the doctrine
of res judicata” and therefore are available only to prevent a
grave miscarriage of justice.
United States v. Beggerly, 525 U.S.
38, 46-47 (1998) (quoting Hazel-Atlas Glass Co. v. Hartford-Empire
Co., 322 U.S. 238, 244 (1944)).
Petitioner contends that Rabil’s actions rise to the most
egregious level of fraud, “fraud which does or attempts to, defile
the court itself, or is a fraud perpetrated by officers of the
court so that the judicial machinery can not perform in the usual
manner its impartial task of adjudging cases that are presented for
adjudication,” Great Coastal, 675 F.2d at 1356. (See Docket Entry
65 at 3.)
The procedural posture of this case differs from that of
Great Coastal, however, in that the federal court was defrauded in
that case.
Here, Petitioner complains of fraud perpetrated on the
state court.
Moreover, the state MAR III court specifically found
Rabil’s testimony regarding what he told McCree not credible and
relied instead on other evidence in resolving this claim.
Because
Petitioner has failed to show fraud that threatens the integrity of
this Court, the savings clause of Rule 60(d)(3) does not apply.
A court confronting an unauthorized successive petition for
habeas corpus has two options.
First, a court may dismiss the
19
filing outright for want of jurisdiction and require the petitioner
to file a motion in the proper court of appeals for PFA under
section 2244(b)(3)(A). Second, the court may transfer unauthorized
successive petitions to the proper court of appeals under 28 U.S.C.
§ 1631.
This section provides that, “[w]henever [a] . . . court
finds that there is a want of jurisdiction, the court shall, if it
is in the interest of justice, transfer such action or appeal to
any other such court in which the action or appeal could have been
brought at the time it was filed. . . .”
transfer
only
when
three
conditions
Thus, § 1631 permits
are
met.
First,
transferring court must lack subject matter jurisdiction.
the
Id.
Second, at the time of the filing, the transferee court could have
considered the filing.
Third, the proposed transfer must be “in
the interest of justice.”
Id.
The district court has discretion
to resolve these matters in this context.
See Jones v. Braxton,
392 F.3d 683 (4th Cir. 2004) (declining to adopt blanket policy
requiring
district
courts
to
automatically
transfer
all
unauthorized successive habeas petitions).
Here, the first two requirements for transfer are clearly met.
Because the petition in this case constitutes a successive habeas
petition
for
jurisdiction.
which
no
PFA
was
obtained,
this
Court
lacks
Additionally, Petitioner could have filed a motion
for PFA originally in the Fourth Circuit.
The only issue here,
then, concerns whether transfer under the unique circumstances of
20
this case would appropriately serve the interests of justice.
Courts have recognized several factors for consideration in this
regard, including whether the claim would be time-barred if refiled in the proper forum; whether the claims are likely to have
merit; whether the claim was filed in good faith; and whether it
was clear at the time of the original filing that the court lacked
the requisite jurisdiction. See, e.g., In re Cline, 531 F.3d 1249,
1251 (10th Cir. 2008).
Petitioner here has presented circumstances which support a
transfer “in the interest of justice.” Petitioner’s claim involves
information which he did not have available to him at the time of
his first habeas action and it appears that Petitioner made the
filing in good faith. Further, Petitioner’s claim may be timebarred under § 2244(d) if, after dismissal of this action, he
obtains a PFA from the Fourth Circuit and then files the action
again in the district court.
III.
CONCLUSION
Petitioner’s instant filing does not come within the reach of
Federal Rule of Civil Procedure 60(b) or (d).
However, the
interest of justice warrants transfer rather than dismissal.
IT IS THEREFORE RECOMMENDED that:
(1) Petitioner’s Motion for Relief from Judgment (Docket Entry
58) be construed as a Successive Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254; and
21
(2) Petitioner’s Motion be TRANSFERRED to the United States
Court of Appeals for Fourth Circuit for a determination of the
propriety of pre-filing authorization.
(3) Respondent’s Motion to Dismiss (Docket Entry 60) be DENIED
WITHOUT PREJUDICE to re-filing should the Fourth Circuit Court of
Appeals deny pre-filing authorization.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 17, 2012
22
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