Jackson v. Hines
OPINION AND ORDER by Judge Claire V Eagan ; denying certificate of appealability; dismissing/terminating case (terminates case) ; dismissing 104 Motion for Miscellaneous Relief (Documents Terminated: 104 MOTION for Rule 60(b) ) (djh, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
ROBERT EARL JACKSON,
REGINALD HINES, Warden,
Case No. 04-CV-195-CVE-FHM
OPINION AND ORDER
This is a closed 28 U.S.C. § 2254 habeas corpus action. On October 13, 2016, Petitioner,
a state inmate appearing pro se, filed a “Rule 60(b) Motion” (Dkt. # 104). In his motion, Petitioner
argues, as he has in numerous previous post-judgment motions, see Dkt. ## 66, 78, 93, 100, that this
Court erred in denying habeas corpus relief on his claim that appellate counsel provided ineffective
assistance in failing to argue on direct appeal that Petitioner’s sentences, entered in Tulsa County
District Court, Case No. CF-2000-1569, were improperly enhanced.1 See Dkt. # 104. For that
reason, Petitioner requests that the judgment entered against him be set aside.
As the Court has repeatedly stated in prior orders, Petitioner’s Rule 60(b) claim is a
substantive challenge to the validity of his Judgment and Sentence entered in state court. As a result,
Petitioner continues to claim that because one of his prior convictions, entered in Tulsa
County District Court, Case No. CF-1995-4621, has been vacated, his appellate counsel provided
ineffective assistance in failing to challenge the enhancement of his current sentences with another
conviction, entered in Tulsa County District Court, Case No. CF-1995-4408. Petitioner’s sentence
in Case No. CF-1995-4408 was ordered to be served concurrently with the sentence ultimately
vacated in CF-1995-4621. However, as noted by both this Court and the Tenth Circuit Court of
Appeals, the conviction used for enhancement, Case No. CF-1995-4408, has not been vacated and
is valid. See Dkt. ## 47, 62. The vacated conviction was not used for enhancement. Petitioner has
never challenged the validity of another conviction, entered in Tulsa County District Court, Case No.
CF-1994-3960, also used to enhance his current sentences.
the instant Rule 60(b) motion qualifies as a successive petition for writ of habeas corpus filed
without prior authorization from the Tenth Circuit Court of Appeals.2 See Gonzalez v. Crosby, 545
U.S. 524, 530-31 (2005) (finding that a motion for relief from judgment, seeking to advance one or
more substantive claims, qualified as a “second or successive habeas petition”); In re: Pickard, 681
F.3d 1201, 1204-05 (10th Cir. 2012) (explaining that “a Rule 60(b) motion is actually a second-orsuccessive petition if the success of the motion depends on a determination that the court had
incorrectly ruled on the merits in the habeas proceeding”); Spitznas v. Boone, 464 F.3d 1213,
1224-25 (10th Cir. 2006). Under 28 U.S.C. § 2244(b), Petitioner’s motions under Fed. R. Civ. P.
59(e) and 60(b) qualify as second or successive habeas petitions and, unless he obtains prior
authorization from the Tenth Circuit Court of Appeals before filing another habeas corpus petition,
this Court lacks jurisdiction to consider his claims. See Dkt. ## 70, 75, 81, 95, 101. In light of the
disposition of Petitioner’s prior motions for relief from judgment, the Court finds it was clear when
Petitioner filed the instant motion that the Court lacked the requisite jurisdiction. Therefore,
Petitioner’s most recent Rule 60(b) motion shall be dismissed without prejudice for lack of
jurisdiction. In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008); 28 U.S.C. § 2244(b).
The record reflects that on September 4, 2007, the Court denied Petitioner’s 28 U.S.C. §
2254 petition for writ of habeas corpus and entered Judgment in favor of Respondent. See Dkt. ##
47, 48. Petitioner appealed to the Tenth Circuit Court of Appeals. On March 10, 2008, the Tenth
Circuit denied a certificate of appealability and dismissed the appeal. See Dkt. # 62. Petitioner filed
a petition for writ of certiorari at the United States Supreme Court. That petition was denied on
March 30, 2009. See Dkt. # 64. Since the denial of certiorari review by the Supreme Court,
Petitioner has filed a series of motions and petitions attempting to obtain relief from judgment. See
Dkt. ## 65, 66, 68, 73, 78, 93, 96, 100. Those requests were dismissed without prejudice as second
or successive petitions filed without prior authorization by the Tenth Circuit Court of Appeals. See
Dkt. ## 70, 75, 81, 95, 101.
Lastly, Petitioner is advised that any appeal from this ruling will be deemed frivolous and not
taken in good faith. For that reason, Petitioner will not be allowed to proceed on appeal in forma
pauperis should he file a notice of appeal. See 28 U.S.C. § 1915(a)(3). He will be required to prepay
the full $505 filing fee for any appeal from this ruling.
Certificate of Appealability
Rule 11, Rules Governing Section 2254 Cases in the United States District Courts, instructs
that “[t]he district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Pursuant to 28 U.S.C. § 2253, the court may issue a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a constitutional
right,” and the court “indicates which specific issue or issues satisfy [that] showing.” A petitioner
can satisfy that standard by demonstrating that the issues raised are debatable among jurists, that a
court could resolve the issues differently, or that the questions deserve further proceedings. Slack
v. McDaniel, 529 U.S. 473 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In addition,
when the Court’s ruling is based on procedural grounds, a petitioner must demonstrate 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.” Slack, 529 U.S. at 484.
In this case, the Court concludes that a certificate of appealability should not issue. Nothing
suggests that the Court’s procedural ruling resulting in the dismissal of Petitioner’s Rule 60(b)
motion is debatable. A certificate of appealability shall be denied.
ACCORDINGLY, IT IS HEREBY ORDERED that:
Petitioner’s “Rule 60(b) Motion” (Dkt. # 104) is dismissed without prejudice for lack of
jurisdiction as a successive petition for writ of habeas corpus filed without prior
authorization from the Tenth Circuit Court of Appeals.
A certificate of appealability is denied.
DATED this 14th day of October, 2016.
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