Webb v. Rios
OPINION AND ORDER by District Judge James H. Payne : Petitioner's motion for relief pursuant to Fed. R. Civ.P 60(b) 30 is DENIED. (Re: 31 Ruling on Motion ) (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CHRISTOPHER W. WEBB,
JOE ALLBAUGH, Director,
Department of Corrections,
No. CIV 13-065-JHP-KEW
OPINION AND ORDER
Petitioner’s petition for a writ of habeas corpus was denied on April 15, 2016 (Dkt.
18), and the Tenth Circuit Court of Appeals dismissed his untimely notice of appeal on
September 7, 2016 (Dkt. 29). He subsequently filed a motion pursuant to Fed. R. Civ. P.
60(b), complaining of “the defects/shortcomings in the integrity of the Federal Habeas
Proceedings that have further prevented/precluded (a) (Final determination on the merits of
petitioner’s claims) which have led to multiple erroneous procedural rulings.” (Dkt. 30 at
1). Petitioner is arguing that this Court has failed to properly consider his claim of the
sufficiency of the evidence to convict him of Conspiracy to Commit a Felony. Id.
Fed. R. Civ. P. Rule 60(b) allows relief from a final judgment, order, or proceeding
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
(4) the judgment is void;
(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; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
“Rule 60(b) relief ‘is extraordinary and may only be granted in exceptional
circumstances.’” Zurich North America v. Matrix Service, Inc., 426 F.3d 1281, 1289 (10th
Cir. 2005) (quoting Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000)).
Furthermore, “[i]n a Rule 60(b) proceeding the motion is addressed to the sound discretion
of the [district] court.” Caribou Four Corners v. Truck Ins. Exchange, 443 F.2d 796, 799
(10th Cir. 1971) (citations omitted).
Petitioner alleges this Court failed to address whether all the elements necessary to
constitute the crime of Conspiracy to Pass Two or More Bogus Checks were proven beyond
a reasonable doubt. In particular, he argues the sixth and seventh elements of the underlying
crime of Passing Two or More Bogus Checks in Excess of $500 were not considered. (Dkt.
30 at 2).1
The elements of the underlying crime of Passing Two or More Bogus Checks in Excess of
$500 are: First, obtained title; Second, to money, property, or other valuable thing; Third, of
another; Fourth, by means of two or more false checks written for a total amount of more than $500;
Fifth, in pursuance of a common scheme; Sixth, known by the defendant to be false; Seventh; with
intent to cheat and defraud. (O.R. 301; Instruction No. 2-19, OUJI-CR(2d)).
The record shows Petitioner raised a claim of insufficient evidence in his habeas
His argument was that the accomplice testimony was insufficient and
uncorroborated, and that even if the evidence had been corroborated, it was insufficient to
establish a conspiracy to commit a felony. (Dkt. 1 at 8-9). The petition, however, failed to
expressly challenge the sufficiency of the evidence with respect to the underlying crime of
Passing Two or More Bogus Checks in Excess of $500. Instead, he raised this issue in his
“Motion to Add the Supplemental Information Re: Ground 2 Insufficient Evidence,”
alleging he lacked the requisite knowledge that there were insufficient funds when the bogus
checks were written. (Dkt. 1 at 35-36). The Court did not address this specific claim
concerning the elements of Petitioner’s underlying crime.
A review of the record shows that Petitioner failed to raise this particular issue on
direct appeal. (Dkt. 14-2 at 16-19). Instead, as in his habeas corpus petition, he presented
the following claim:
THE EVIDENCE WAS INSUFFICIENT TO CONVICT MR. WEBB, AS
THE ACCOMPLICE TESTIMONY WAS NOT CORROBORATED, AND
THE EVIDENCE, EVEN IF TAKEN AS TRUE AND SUFFICIENTLY
CORROBORATED DID NOT ESTABLISH A CONSPIRACY TO COMMIT
Id. at 16. This proposition raised no claim concerning the elements of the underlying crime.
Id. at 16-19.
The Oklahoma Court of Criminal Appeals denied the ineffective assistance of counsel
claim as follows:
. . . Taking the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found that Appellant conspired with Shannon
Billey and Salomon Pedraza to commit the felony of passing two or more false
or bogus checks in a total sum of $500.00 or more beyond a reasonable doubt.
Eastlick v. State, 90 P.3d 556, 559 (Okla. Crim. App. 2004); Spuehler v. State,
709 P.2d 202, 203-04 (Okla. Crim App. 1985).
Webb, No. F-2011-905, slip op. at 4 (Okla. Crim. App. Jan 29, 2013) (Dkt. 14-5 at 4).
In analyzing the petition, this Court thoroughly reviewed the record with respect to
the claim of sufficiency of the evidence and determined the OCCA’s decision was not
contrary to, or an unreasonable application of, clearly establish federal law, as determined
by the United States Supreme Court. (Dkt. 18 at 10-16). To the extent Petitioner is
attempting to raise a distinct claim concerning the elements of the underlying crime of
Passing Two or More Bogus Checks in Excess of $500, the Court finds that specific claim
is unexhausted and subject to the anticipatory procedural bar.
“Before a federal court may grant habeas relief to a state prisoner, the prisoner must
exhaust his remedies in state court.” Thacker v. Workman, 678 F.3d 820, 838-39 (10th Cir.
2012) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)). To satisfy the exhaustion
requirement, “state prisoners [must] give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process.” Id. at 839 (quoting O’Sullivan, 526 U.S. at 845).
Here, the Court finds Petitioner did not exhaust his claim regarding the elements of
the underlying crime. See Thacker, 678 F.3d at 839; Bland v. Sirmons, 459 F.3d 999, 1011
(10th Cir. 2006) (discussing fair-presentation requirement of exhaustion doctrine and noting
the petitioner “cannot assert entirely different arguments from those raised before the state
court”). The Court also finds this unexhausted portion of Petitioner’s sufficiency-of-theevidence claim would be procedurally barred if Petitioner were to return to state court to
exhaust it. The OCCA routinely bars consideration of issues which were not, but could have
been, raised on direct appeal. See, e.g., Boyd v. State, 915 P.2d 922, 924 (Okla. Crim. App.
1996) (noting in application for post-conviction relief, the OCCA “will neither consider an
issue raised on direct appeal and therefore barred by res judicata, nor will it consider an issue
which has been waived because it could have been raised on direct appeal but was not”).
Thus, unless Petitioner can make the requisite showings to overcome application of an
anticipatory procedural bar, the Court will not consider the unexhausted portions of
Petitioner’s claim of insufficient evidence.
Federal habeas petitioners may not obtain review of claims raised in a habeas petition
“that have been defaulted in state court on an independent and adequate state procedural
ground, unless the petitioner can demonstrate cause and prejudice or a fundamental
miscarriage of justice.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing
Coleman v. Thompson, 501 U.S. 722, 749-50 (1991)). The Tenth Circuit has upheld Okla.
Stat. tit. 22, § 1086, of the Post-Conviction Procedure Act as an independent and adequate
state ground for denying habeas relief. Smith v. Workman, 550 F.3d 1258, 1267 (10th Cir.
2008). Petitioner, however, has presented no evidence of cause and prejudice or a
fundamental miscarriage of justice to overcome the bar. This failure precludes federal
habeas review. Hawkins v. Mullin, 291 F.3d 658, 671 n.5 (10th Cir. 2002); Paxton v. Ward,
199 F.3d 1197, 1206 (10th Cir. 1999). The fundamental miscarriage of justice exception is
narrow and applies only in the “extraordinary” case of one who is “innocent of the crime.”
Gilbert v. Scott, 941 F.3d 1065, 1068 n.2 (10th Cir. 1991). The Tenth Circuit has explained
this exception as follows:
To come within this “very narrow exception,” the petitioner must supplement
his habeas claim with a colorable showing of factual innocence. Such a
showing does not in itself entitle the petitioner to relief but instead serves as
a “gateway” that then entitles the petitioner to consideration of the merits of
his claims. In this context, factual innocence means that “it is more likely than
not that no reasonable juror would have found petitioner guilty beyond a
Demarest v. Price, 130 F.3d 922, 941-42 (10th Cir. 1997) (citations omitted).
Evidence that “is corroborating evidence, impeaching evidence, or evidence merely
raising some suspicion or doubt of [a petitioner’s] guilt” is not “persuasive evidence of
‘actual innocence.’” Stafford v. Saffle, 34 F.3d 1557, 1561 (10th Cir. 1994), cert. denied, 514
U.S. 1099 (1995).
‘“[A]ctual innocence’ means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623-24 (1998) (citing Sawyer v.
Whitley, 505 U.S. 333, 339 (1992)).
After careful review, the Court finds Petitioner has not demonstrated that a
miscarriage of justice would result if he is prevented by the procedural bar from proceeding
on the merits of his claim. Therefore, Petitioner’s claim concerning the sufficiency of the
evidence with respect to the underlying crime is procedurally barred.
ACCORDINGLY, Petitioner’s motion for relief pursuant to Fed. R. Civ. P 60(b)
(Dkt. 30) is DENIED.
IT IS SO ORDERED this 12th day of April 2018.
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