Cone v. Dowling
Filing
48
OPINION AND ORDER by District Judge John F. Heil, III : Denying 42 Motion to Vacate the Judgment as void pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure and denying certificate of appealability (acg, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
JOHN ELDRIDGE CONE, JR.
Petitioner,
v.
No. 16-CV-384-JFH-KEW
DAVID LOUTHAN, Warden,
Respondent.
OPINION AND ORDER
This habeas corpus action is again before the Court. Petitioner John Eldridge Cone, Jr.
(“Cone”) filed a motion to vacate the judgment under Rule 60(b)(4) of the Federal Rules of Civil
Procedure. Dkt. No. 42. Rule 60(b)(4) states, “On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or proceeding for the following
reason[]: . . . the judgment is void.” Fed. R. Civ. P. 60(b)(4).
Background
The record shows that on September 9, 2016, Cone filed this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in Muskogee County District
Court Case No. CF-2012-749 for First Degree Murder (Count 1) and Assault and Battery with a
Deadly Weapon (Count 2). The respondent filed a motion to dismiss, alleging Cone had filed a
mixed petition. Dkt. No. 9. After Cone filed a response to the motion [Dkt. No. 13], the Court
found that he could proceed on three (3) claims:
I.
Trial counsel was ineffective for failing to object to allegedly defective
instructions;
II.
Trial counsel was ineffective for failing to object to alleged incidences
of prosecutorial misconduct; and
III.
Cumulative error deprived petitioner of a fair trial.
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Dkt. No. 14 at 4. As a result, the respondent’s motion to dismiss was denied. Id.
On September 30, 2019, the Court entered an Opinion and Order denying Cone’s remaining
claims and denying a certificate of appealability. Dkt. No. 24. Judgment also was entered on that
date. Dkt. No. 25.
On October 10, 2019, Cone filed a motion to alter or amend the judgment pursuant to Rule
59(e) of the Federal Rules of Civil Procedure, alleging there was “a defect in the integrity of the
habeas proceeding.” Dkt. No. 26 at 2. He asserted “the Court erroneously found that there was
no evidence to support the trial court’s instruction on heat-of-passion manslaughter, and that if the
instruction was incomplete, Petitioner was not harmed.” Dkt. No. 30 at 1. The Court found Cone’s
motion was “attacking the Court’s determination of the merits,” therefore, the motion should be
treated as a second or successive habeas petition. Id. at 4. Because Cone had not obtained
authorization from the Tenth Circuit Court of Appeals before filing the motion, pursuant to 28
U.S.C. § 2244(b)(3)(A), it was dismissed for lack of jurisdiction. Id.
Cone appealed to the Tenth Circuit on December 12, 2019. Dkt. No. 31. On April 23,
2020, the appellate court found that “reasonable jurists could not debate the district court’s denial
of Cone’s § 2254 habeas petition. Dkt. No. 39 at 6. Cone’s request for a certificate of appealability
was denied, and the appeal in Case No. 19-7068 was dismissed. Id. Cone’s petition for a writ of
certiorari in United States Supreme Court Case No. 20-5466 was denied on November 2, 2020.
Dkt. No. 41.
Cone’s Claim
On September 8, 2022, Cone filed a motion to vacate the judgment as void, pursuant to
Fed. R. Civ. P. 60(b)(4). Dkt. No. 42. He alleges that “[th]his Court overlooked an issue properly
raised in petitioner’s habeas petition.” Id. at 1. He specifically asserts:
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In the case at bar, the fact of the case demonstrates petitioner was entitled to a selfdefense, heat of passion instruction. The victim received a total of four gunshot
wounds from which he died. The autopsy report reflects that two of those gunshot
wounds were to the victim’s bicep, which support[s] petitioner’s assertion that the
victim had grabbed petitioner by his throat prior to the shooting and establishes that
petitioner acted out of fear of being injured or killed. McHam v. State, 126 P.3d
662, 668 (Okl. Cr. 2005).
Id. at 2 (punctuation in original).
This Court stated in its Opinion and Order denying habeas relief that the victim received
four gunshot wounds that caused his death. Dkt. No. 24 at 4 (citing Dkt. No. 18-2 at 8-11). Cone
is complaining about the Court’s determination that his unsupported claim that the victim grabbed
him by the throat prior to the shooting was “self-serving” and “insufficient to establish that
petitioner was prejudiced by the lack of a jury instruction on the Defense of the Heat of Passion.”
Id. at 1-2 (citing Dkt. No. 24 at 18). Cone maintains that the victim’s autopsy report corroborated
his statement that the victim grabbed him by his throat prior to the shooting. Id. at 2. He contends
“[t]he first two gunshots were to the victim’s bicep in an attempt to free himself before firing the
two fatal gunshots into the victim’s side.” Id. The Court has reviewed Cone’s petition [Dkt. No.
1] and his replies to the respondent’s response to the petition [Dkt. Nos. 20, 23] and has found no
reference to the autopsy report or how it could have affected the jury instructions.
Discussion
Because Cone filed his Rule 60(b)(4) motion in the context of a habeas proceeding, the
Court must determine whether the Rule 60(b) motion is a “true” Rule 60(b) motion, or it instead
should be treated as a second or successive habeas corpus petition. See Spitznas v. Boone, 464
F.3d 1213, 1215-16 (10th Cir. 2006) (distinguishing between “true” Rule 60(b) motions and Rule
60(b) motions filed in habeas proceedings that should be construed as second or successive habeas
petitions). Spitznas explains that “a 60(b) motion is a second or successive petition if it in
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substance or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying
conviction.” 464 F.3d at 1215.
Some examples of Rule 60(b) motions that should be treated as second or
successive habeas petitions because they assert or reassert a federal basis for relief
from the underlying conviction include: a motion seeking to present a claim of
constitutional error omitted from the movant’s initial habeas petition, Gonzales v.
Crosby, 545 U.S. 524, 530-31; a motion seeking leave to present “newly discovered
evidence” in order to advance the merits of a claim previously denied, see id. at
531; or a motion “seek[ing] vindication of” a habeas claim by challenging the
habeas court’s previous ruling on the merits of that claim, id. at 531-32.
By contrast, a 60(b) motion that challenges only the federal habeas court’s ruling
on procedural issues should be treated as a true 60(b) motion rather than a
successive petition. See id. at 532 & n. 4. Thus, for example, a motion asserting
that the federal district court incorrectly dismissed a petition for failure to exhaust,
procedural bar, or because of the statute of limitations constitutes a true 60(b)
motion. See id. at 532-33.
Spitznas, 464 F.3d at 1216.
Here, the Court finds Cone is attempting to add a new, unexhausted claim alleging the
victim’s autopsy supported Cone’s claim that the victim grabbed Cone by the throat before the
first two shots were fired. There is, however, no evidence that this particular claim has been
presented to the state courts as required by 28 U.S.C. § 2254(b). To satisfy the exhaustion
requirement, a claim must be presented to the State’s highest court through a direct appeal or a
post-conviction proceeding. Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir.
1994). Further, this claim was presented in this habeas corpus action after the one-year statute of
limitations in 28 U.S.C. § 2244(d) had expired. Therefore, the Rule 60(b)(4) motion should be
treated as a second or successive habeas petition.
If . . . the district court concludes that the motion is actually a second or successive
petition, it should refer the matter to [the circuit] court for authorization under §
2244(b)(3). See 28 U.S.C. § 1631 (authorizing transfer of civil action or appeal
filed without jurisdiction, in the interest of justice, “to any other court in which the
action or appeal could have been brought at the time it was filed or noticed”);
Coleman v. United States, 106 F.3d 339, 341 (10th Cir.1997) (per curiam).
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Spitznas v. Boone, 464 F.3d at 1217.
Because this petition is untimely, unexhausted, and second or successive, the Court finds
it would be a waste of judicial resources to transfer the case for the Tenth Circuit’s consideration
of Cone’s claims. See Phillips v. Seiter, 173 F.3d 609, 610-11 (7th Cir. 1999) (noting that it would
be a “waste of judicial resources” to transfer cases, such as time-barred cases, that are “clearly
doomed”). This Court should instead exercise its discretion to deny the petition. See In re Cline,
531 F.3d at 1251 (“Factors considered in deciding whether a transfer is in the interest of justice
include . . . whether the claims were filed in good faith or if, on the other hand, it was clear at the
time of filing that the court lacked the requisite jurisdiction.” Therefore, Cone’s motion to vacate
the judgment as void pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure [Dkt. No.
42] is denied.
Certificate of Appealability
Under Rule 11(a) of the Rules Governing Section 2254 Proceedings, the Court must issue
or deny a certificate of appealability when it enters a final order adverse to a petitioner. Here, the
Court finds that no reasonable jurist would debate that Cone’s Rule 60(b)(4) motion is an
unauthorized second or successive section 2254 petition. See Slack v. McDaniel, 529 U.S. 473,
484 (2000) (“When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”). The Court declines to issue a
certificate of appealability.
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IT IS THEREFORE ORDERED that Cone’s motion to vacate the judgment as void
pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure [Dkt. No. 42] is DENIED, and
Cone is denied a certificate of appealability.
Dated this 7th day of June 2023.
____________________________________
JOHN F. HEIL, III
UNITED STATES DISTRICT JUDGE
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