Gause v. Cooper

Filing 80

ORDER dismissing without prejudice as an unauthorized, successive § 2254 petition; 73 Motion Relief from Judgment Rule 60(b)(3))Relief from Judgment Rule 60(b)(3); dismissing without prejudice as an unauthorized, suc cessive § 2254 petition; 74 Motion Relief from Judgment Rule 60(b)(3)); dismissing without prejudice as an unauthorized, successive § 2254 petition; 75 Motion Relief from Judgment Rule 60(b)(3);dismissing without prejudice as an u nauthorized, successive § 2254 petition; 76 Motion Relief from Judgment Rule 60(b)(3); dismissing without prejudice as an unauthorized, successive § 2254 petition 77 Motion Relief from Judgment Rule 60(b)(3)dismissing without preju dice as an unauthorized, successive § 2254 petition; 78 Motion Relief from Judgment Rule 60(b)(3). Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court declines to issue a certificate of appealability as Petitioner has not made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would fin d the district courts assessment of the 5constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding that when relief is denied on procedural grounds, a petitioner must establish both that the correctness of the dispositive procedural ruling is debatable, and that the petition states a debatably valid claim of the denial of a constitutional right). Signed by Chief Judge Frank D. Whitney on 2/12/18. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16cv631-FDW
WALTER TIMOTHY GAUSE,
Petitioner,
v.
FRANK L. PERRY,
Respondent.

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ORDER

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THIS MATTER is before the Court upon Petitioner’s six pro se motions pursuant to
Federal Rule of Civil Procedure 60(b). (Doc. Nos. 73-78.)
I.

RELEVANT PROCEDURAL HISTORY

Petitioner is a prisoner of the State of North Carolina who, on February 20, 2014, was
convicted by a jury in Mecklenburg County Superior Court of robbery with a dangerous weapon,
assault with a deadly weapon inflicting serious injury, and conspiracy to commit robbery with a
dangerous weapon. State v. Gause, 772 S.E.2d 265, 2015 WL 1529828, at * 1-2 (N.C. Ct. App.
2015) (unpublished). The trial court sentenced Petitioner to consecutive active sentences of 146–
185 months imprisonment for the robbery and conspiracy convictions, and 59–80 months for the
assault conviction. Id. at *2. Judgment was entered on February 21, 2014.
The North Carolina Court of Appeals denied Petitioner’s direct appeal, in part, but
vacated the trial court’s order on restitution and remanded that issue to the trial court for
hearings. Id. at *7. The North Carolina Supreme Court subsequently denied Petitioner’s petition
for discretionary review. State v. Gause, 776 S.E.2d 858 (N.C. 2015) (Mem).
After pursuing post-conviction relief in the state courts, Petitioner filed a Petition for Writ
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of Habeas Corpus, 28 U.S.C. § 2254, in this Court, claiming the State violated his right to a
speedy trial and the trial court erred in denying his motion to dismiss based upon the pre-trial
destruction of most of the physical evidence in his case. (Doc. No. 1.) Respondent filed a
Motion for Summary Judgment. (Doc. No. 13.)
On February 13, 2017, the Court entered an Order granting Respondent’s Motion for
Summary Judgment and denying and dismissing the Petition for Writ of Habeas Corpus. (Doc.
No. 49.) The Fourth Circuit Court of Appeals dismissed Petitioner’s appeal. (Doc. Nos. 70, 72.)
Petitioner has filed six motions for relief from judgment pursuant to Rule 60(b)(3), (b)(6)
of the Federal Rules of Civil Procedure. (Doc. Nos. 73-78.) For the reasons that follow, these
motions shall be dismissed.
II.

DISCUSSION

Federal Rule of Civil Procedure 60(b) enumerates specific circumstances in which a party
may be relieved of the effect of a federal judgment, such as mistake, newly discovered evidence,
and fraud. Fed. R. Civ. P. 60(b)(1)-(3). The Rule concludes with a catchall category providing
that a federal court may lift a judgment for “any other reason that justifies relief.” Id. at Rule
60(b)(6).
Rule 60(b) applies to § 2254 proceedings but only “to the extent that [it is] not
inconsistent with” applicable statutory provisions and rules. Rules Governing Section 2254
Cases in the United States District Courts, Rule 12, 28 U.S.C. foll. § 2254. Among the statutory
provisions governing § 2254 proceedings are those that expressly limit a petitioner's ability to
attack his criminal judgment in a subsequent collateral proceeding. See e.g. 28 U.S.C. §
2244(b)(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
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authorizing the district court to consider the application.”).
“[A] Rule 60(b) motion in a habeas proceeding that attacks ‘the substance of the federal
court's resolution of a claim on the merits’ is not a true Rule 60(b) motion, but rather a
successive habeas petition,” and is therefore subject to the preauthorization requirement of §
2244(b)(3)(A) for successive applications. United States v. McRae, 793 F.3d 392, 397 (4th Cir.
2015) (quoting Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005)). On the other hand, “[a] Rule
60(b) motion that challenges some defect in the integrity of the federal habeas proceedings . . . is
a true Rule 60(b) motion, and is not subject to the preauthorization requirement.” McRae, 793
F.3d at 397 (internal quotation marks omitted).
None of Petitioner’s, largely repetitive, Rule 60(b) Motions challenge a defect in the
integrity of his federal habeas proceedings. Instead, Petitioner attacks the substance of this
Court’s resolution of the Petition on the merits, reargues points he raised in his habeas Petition,
or raises new claims. The Motions are, therefore, not true Rule 60(b) motions, but rather
successive habeas petitions subject to the preauthorization requirement of § 2244(b)(3)(A) for
successive applications. See McRae, 793 F.3d at 397. Because Petitioner has not obtained the
necessary permission from the Fourth Circuit to file a successive § 2254 habeas petition, his
motions must be dismissed. See Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding that
failure of petitioner to obtain authorization to file a “second or successive” petition deprived the
district court of jurisdiction to consider the second or successive petition “in the first place”);
United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (“In the absence of pre-filing
authorization, the district court lacks jurisdiction to consider an application containing abusive or
repetitive claims.”) (citation omitted).
IT IS, THEREFORE, ORDERED that:
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1. Petitioner’s Motion for Relief from Judgment pursuant to Fed. R. Civ. P. 60(b)(3),
(b)(6) (Doc. No. 73) is DISMISSED without prejudice as an unauthorized,
successive § 2254 petition;
2. Petitioner’s Motion for Relief from Judgment pursuant to Fed. R. Civ. P. 60(b)(3),
(b)(6) (Doc. No. 74) is DISMISSED without prejudice as an unauthorized,
successive § 2254 petition;
3. Petitioner’s Motion for Relief from Judgment pursuant to Fed. R. Civ. P. 60(b)(3),
(b)(6) (Doc. No. 75) is DISMISSED without prejudice as an unauthorized,
successive § 2254 petition;
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Petitioner’s Motion for Relief from Judgment pursuant to Fed. R. Civ. P. 60(b)(3),
(b)(6) (Doc. No. 76) is DISMISSED without prejudice as an unauthorized,
successive § 2254 petition;

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Petitioner’s Motion for Relief from Judgment pursuant to Fed. R. Civ. P. 60(b)(3),
(b)(6) (Doc. No. 77) is DISMISSED without prejudice as an unauthorized,
successive § 2254 petition;

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Petitioner’s Motion for Relief from Judgment pursuant to Fed. R. Civ. P. 60(b)(3),
(b)(6) (Doc. No. 78) is DISMISSED without prejudice as an unauthorized,
successive § 2254 petition; and

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Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court declines
to issue a certificate of appealability as Petitioner has not made a substantial showing
of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
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constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484
(2000) (holding that when relief is denied on procedural grounds, a petitioner must
establish both that the correctness of the dispositive procedural ruling is debatable,
and that the petition states a debatably valid claim of the denial of a constitutional
right).
SO ORDERED.
Signed: February 12, 2018

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