Rogers v. Rios
Filing
26
OPINION AND ORDER by Judge Claire V Eagan - The motion for reconsideration out of time (Dkt. # 21), construed as a Rule 60(b)(6) motion and treated as a second or successive habeas petition, is dismissed without prejudice for lack of juris diction. To the extent the motion for reconsideration out of time (Dkt. # 21) could be construed, in part, as a motion to reopen the time to appeal, that motion is denied. To the extent the motion for reconsideration out of time (Dkt. # 21) could be construed, in part, as a "true" Rule 60(b) motion, that motion is denied and a certificate of appealability is denied. The motion to proceed in forma pauperis (Dkt. # 22) is denied as moot. The motion for enlargement of time (Dkt. # 24) is denied as moot. ; dismissing 21 Motion to Reconsider; finding as moot 22 Motion for Leave to Proceed in Forma Pauperis; finding as moot 24 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (Re: 19 Opinio n and Order,,, Denying Certificate of Appealability,,,,,, Ruling on Petition for Writ of Habeas Corpus (2241/2254),, 24 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) , 20 Judgment,, Entering Judgment,,, 21 MOTION to Reconsider , 22 MOTION for Leave to Proceed in Forma Pauperis ) (RGG, Chambers)
Case 4:17-cv-00060-CVE-FHM Document 26 Filed in USDC ND/OK on 03/25/21 Page 1 of 10
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
WILLIAM BUCK RODGERS,
Petitioner,
v.
SCOTT CROW, Director
Respondent.
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Case No. 17-CV-0060-CVE-FHM
OPINION AND ORDER
This is a closed habeas action. In an opinion and order (Dkt. # 19) filed April 1, 2020, the
Court denied the 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 3) filed by petitioner
William Rodgers. The Court entered judgment (Dkt. # 20) against Rodgers the same day. Rodgers
did not appeal, and the time to do so has expired. See FED. R. APP. P. 4(a)(1)(A) (providing 30-day
period to file timely notice of appeal). Before the Court are three post-judgment motions filed by
Rodgers: a motion for reconsideration out of time (Dkt. # 21), a motion to proceed in forma pauperis
(Dkt. # 22), and a motion for enlargement of time (Dkt. # 24). Respondent Scott Crow filed a
response (Dkt. # 23) in opposition to the motion for reconsideration out of time, and Rodgers filed
a reply (Dkt. # 25). For the reasons that follow, the Court construes the motion for reconsideration
out of time as a FED. R. CIV. P. 60(b)(6) motion that should be treated as a second or successive
habeas petition and dismisses the motion, without prejudice, for lack of jurisdiction, and denies as
moot the motion to proceed in forma pauperis and the motion for enlargement of time.
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I.
Background
Represented by counsel, Rodgers filed a 28 U.S.C. 2254 petition for writ of habeas corpus
(Dkt. # 3) on February 7, 2017, challenging the validity of the judgment and sentence entered against
him in the District Court of Creek County (Sapulpa Division), Case No. CF-2012-396. Rodgers
identified three claims: (1) the trial court and the Oklahoma Court of Criminal Appeals (OCCA)
violated his constitutional right to due process and the prohibition against ex post facto laws by
failing to conclude that he was immune from prosecution for first-degree murder, under OKLA. STAT.
tit. 21, § 1289.25, Oklahoma’s “stand-your-ground” law; (2) he was deprived of his Sixth
Amendment right to the effective assistance of trial counsel; and (3) six trial errors deprived him of
his Sixth and Fourteenth Amendment rights to a fair trial. Dkt. # 3, at 40-50, 60-89.1 In an opinion
and order (Dkt. # 19) filed April 1, 2020, the Court denied the petition, finding that some claims
raised in the petition alleged errors of state law only, and thus did not present cognizable habeas
claims, and determining that Rodgers failed to demonstrate that he was entitled to relief on those
claims that were subject to federal habeas review. The Court entered judgment (Dkt. # 20) against
Rodgers the same day.
On July 2, 2020, Rodgers received a letter from his habeas counsel. Dkt. # 21, at 1-2, 23-24.
In the letter, dated June 24, 2020, counsel informed Rodgers that this Court denied his habeas
petition and denied a certificate of appealability, further informed Rodgers that she would no longer
be representing him, and stated that a copy of the April 1, 2020, opinion and order was enclosed.
Dkt. # 21, at 1-2, 23.
1
For consistency, the Court’s citations refer to the CM/ECF header pagination.
2
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Proceeding pro se,2 Rodgers filed a motion for reconsideration out of time (Dkt. # 21) and
a motion to proceed in forma pauperis (Dkt. # 22) on December 28, 2020. Crow filed a response
(Dkt. # 23) in opposition to the motion for reconsideration out of time on January 12, 2021. On
February 1, 2021, Rodgers filed a motion for enlargement of time (Dkt. # 24), seeking an additional
45 days “to perform the necessary legal actions with the aid of the law library, and many resources
it contains.” Rodgers filed a reply brief (Dkt. # 25) three days later, on February 4, 2021.
II.
Analysis
A.
Motion for reconsideration out of time (Dkt. # 21)
In his motion for reconsideration out of time, Rodgers purports to invoke this Court’s
“jurisdiction in accordance to FED. R. CIV. P., Rule 60(b)(c) and FED. R. CIV. P., Rule 15(c)” and
asks the Court to “liberally construe his [m]otion under FED. R. CIV. P. Rule 60(b)(c), Title 28 USCA
§ 144, and Title 28 U.S.C. 455.” Dkt. # 21, at 1. Rodgers alleges he did not file this motion sooner
because (1) habeas counsel “left [him] unrepresented at the Federal District Court” and he did not
receive a copy of this Court’s April 1, 2020, opinion and order denying his petition until July 2,
2020, when the prison belatedly delivered counsel’s letter providing him a copy of the decision, and
(2) his access to the law library and legal resources at the prison have been limited due to the
ongoing coronavirus pandemic. Dkt. # 21, at 2. In the remainder of his motion, Rodgers reasserts
claims and arguments he presented in his habeas petition, asks the Court to “consider[] all of the
collective evidence; both the issues addressed in previous documents, as well as the newly
discovered documents utilized in an effort to properly elaborate the actual events that occurred on
2
Because Rodgers now appears in this matter without counsel, the Court must liberally
construe his pleadings but, in doing so, the Court may not advocate on his behalf. Gallagher
v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
3
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September 23rd, 2012,”3 and asserts that he “was denied a correct and unprejudiced reasoning”
regarding his ex post facto claim. Dkt. # 21, at 6-22.
Crow contends that the Court should construe the motion as one seeking relief under FED.
R. CIV. P. 60(b), treat the Rule 60(b) motion as an unauthorized second or successive habeas petition,
and dismiss the motion for lack of jurisdiction. Dkt. # 23, at 1-2, 5-9. In his reply brief, Rodgers
reasserts that habeas counsel effectively abandoned him after filing the habeas petition and by
providing him untimely notice of this Court’s decision and he argues that he did not file a second
or successive petition but, instead, he is merely “attempting . . . to continue his appeal process” by
“[p]etitioning the Court for a rehearing consideration that he was deprived of the opportunity to
submit at no fault of his own.” Dkt. # 25, at 1-2.
1.
The motion seeks relief under Rule 60(b).
For three reasons, the Court finds that the motion for reconsideration out of time should be
construed as a motion seeking relief from judgment under FED. R. CIV. P. 60(b)(6). First, to the
extent Rodgers suggests that his motion for reconsideration out of time implicates FED. R. CIV. P.
15(c), he is mistaken. Rule 15 governs the filing of amended or supplemental pleadings before,
during or after trial, and Rule 15(c) specifically governs when an amendment may relate back to the
date the original pleading was filed. FED. R. CIV. P. 15. But “[o]nce judgment is entered, the filing
of an amended [pleading] is not permissible until judgment is set aside or vacated pursuant to FED.
3
Rodgers’ reference to “newly discovered documents utilized . . . to properly elaborate the
actual events that occurred on September 23rd, 2012” is unclear. To the extent Rodgers
includes specific citations in his motion to support his factual allegations, those citations
refer to trial transcripts previously submitted to the Court, not newly discovered documents.
Rodgers did, however, submit a letter from habeas counsel, dated June 24, 2020, advising
him that his petition was denied, and a copy of his inmate mail log, reflecting that he
received that letter on July 1, 2020. Dkt. # 21, at 23-24.
4
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R. CIV. P. 59(e) or 60(b).” Tool Box, Inc., v. Ogden City Corp., 419 F.3d 1084, 1087 (10th Cir.
2005) (quoting Seymour v. Thornton, 79 F.3d 980, 987 (10th Cir. 1996)). Beyond Rodgers’ mention
of Rule 15(c), is not apparent that Rodgers seeks to amend or supplement any pleading. But even
if he does, Rule 15(c) has no application here because Rodgers filed his motion long after judgment
was entered against him and that judgment has neither been set aside nor vacated.
Second, as Crow notes, a motion for reconsideration can, in some circumstances, be
construed as a motion seeking relief under FED. R. CIV. P. 59(e). See Banister v. Davis, 140 S. Ct.
1698, 1702-03 (2020); Jennings v. River, 394 F.3d 850, 855-56 (10th Cir. 2005) (explaining that
district court should consider timing and substance of post-judgment motion for reconsideration to
determine whether movant seeks relief under Rule 59(e) or Rule 60(b)). But a Rule 59(e) motion
must be filed “no later than 28 days after the entry of judgment.” FED. R. CIV. P. 59(e); Banister, 140
S. Ct. at 1703. Here, Rodgers filed the motion for reconsideration out of time nearly nine months
after the entry of judgment. Moreover, even though the facts of this case appear to support Rodgers’
assertion that habeas counsel’s inaction may have prevented him from filing a timely Rule 59(e)
motion, this Court has no authority to extend the time for filing a Rule 59(e) motion. See FED. R.
CIV. P. 6(b)(1)-(2) (generally permitting court to extend time for “good cause” or “excusable neglect”
but barring court from extending time for filing a Rule 59(e) motion).
Third, the substance and timing of the motion for reconsideration out of time supports
Crow’s contention that the motion is most reasonably construed as one seeking relief from the
judgment under Rule 60(b). Under Rule 60(b), a district court may grant relief from an order or
judgment for the reasons specified in subsections (1) through (5) of the rule or, under subsection (6),
“for any other reason that justifies relief.” Rule 60(b)(6)’s any-other-reason category is broad;
5
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nonetheless, even under Rule 60(b)(6) a court should grant relief from a judgment or order “only in
‘extraordinary circumstances.’” Buck v. Davis, 137 S. Ct. 759, 777-78 (2017) (quoting Gonzalez
v. Crosby, 545 U.S. 524, 535 (2005)). And while certain Rule 60(b) motions must be filed within
one year of the entry of judgment, others, including those seeking relief under Rule 60(b)(6), need
only be filed “within a reasonable time.” FED. R. CIV. P. 60(c).
Under the circumstances of this case, and for the reasons just explained, the Court construes
the motion for reconsideration out of time as a motion seeking relief under Rule 60(b)(6).
2.
The Rule 60(b)(6) motion is a second or successive habeas petition.
Because Rodgers filed his Rule 60(b)(6) motion in the context of a habeas proceeding, the
Court’s next task is to determine whether the Rule 60(b)(6) motion is a “true” Rule 60(b) motion or,
instead, should be treated as a second or successive habeas 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 [Rule] 60(b) motion is a second or successive petition if it in
substance or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying
conviction.” 464 F.3d at 1215. Examples of Rule 60(b)(6) motions that should be construed as
second or successive habeas petitions include motions “seeking leave to present ‘newly discovered
evidence’ in order to advance the merits of a claim previously denied,” Spitznas, 464 F.3d at 1216,
and motions “that seek[] vindication of” a previously asserted habeas claim by attacking the district
court’s prior ruling addressing the merits of that claim, Gonzalez, 545 U.S. at 531.
But a Rule 60(b) motion “is a ‘true’ [Rule] 60(b) motion if it either (1) challenges only a
procedural ruling of the habeas court which precluded a merits determination of the habeas
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application, or (2) challenges a defect in the integrity of the federal habeas proceeding, provided that
such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior
habeas petition.” Spitznas, 464 F.3d at 1215-16 (internal citations omitted). True Rule 60(b)
motions include those motions that challenge a district court’s decision to dismiss a habeas petition
on procedural grounds and those that allege “a defect in the integrity of the habeas proceeding based
upon a claim of fraud on the court.” Id. at 1216.4
Here, as Crow contends, Rodgers’ Rule 60(b)(6) motion “largely reasserts the claims he
previously raised in his habeas petition,” “alleges this Court incorrectly rejected his ineffective
assistance of counsel claims,” appears to raise some new claims and new allegations regarding his
previously asserted ineffective-assistance-of-trial-counsel claim, and expressly asks this Court to
“reconsider[] its previous judgment de novo.” Dkt. # 23, at 5-8; Dkt. # 21, at 21. Even with the
benefit of liberal construction, the Court cannot read the Rule 60(b) motion as anything other than
a second or successive habeas petition because Rodgers not only challenges the Court’s previous
ruling on the merits of the claims he raised in his petition, but also appears to assert new habeas
4
Rodgers also asks the Court to “liberally construe” his motion under “Title 28 USCA § 144,
and Title 28 U.S.C. § 455” and he makes scattered references to “bias,” “prejudice,” and
“favoritism.” Dkt. # 21, at 1, 6, 21. Section 144 permits a party to have a new judge
assigned to a case if the party files a “timely and sufficient affidavit” demonstrating “that the
judge before whom the matter is pending has a personal bias or prejudice either against him
or in favor of any adverse party.” 28 U.S.C. § 144. Section 455 requires a judge to
disqualify herself “in any proceeding in which [her] impartiality might reasonably be
questioned” and in certain enumerated circumstances. 28 U.S.C. § 455(a), (b). Even
generously construing the motion, the Court declines to read it as a true Rule 60(b) motion
alleging a defect in the habeas proceeding based on Rodgers’ undeveloped allegations of bias
and prejudice. However, to the extent any portion of the motion could be construed as a true
Rule 60(b) motion, the Court denies the motion and denies a certificate of appealabilty. See
28 U.S.C. § 2253(c); Spitznas, 464 F.3d at 1218 (concluding that a certificate of appealability
is required to appeal from the denial of a true Rule 60(b) motion).
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claims. The Court therefore agrees with Crow that the motion for reconsideration out of time,
construed as a Rule 60(b)(6) motion, should be treated as a second or successive habeas petition.5
3.
This Court lacks jurisdiction over the second or successive petition.
Finally, the Court finds that the motion for reconsideration out of time, construed as a Rule
60(b)(6) motion and treated as a second or successive habeas petition, should be dismissed for lack
of jurisdiction. Before filing a second or successive habeas petition in district court, a petitioner
must obtain authorization to do so from the court of appeals. 28 U.S.C. § 2244(b)(3)(A). If a
petitioner does not obtain authorization from the court of appeals, the district court does not have
jurisdiction to consider any claims raised in a second or successive. In re Cline, 531 F.3d 1249, 1251
(10th Cir. 2008) (per curiam). Nothing in the record suggests that Rodgers either sought or obtained
permission from the United States Court of Appeals for the Tenth Circuit to file a second or
successive habeas petition after this Court denied his first habeas petition. Because Rodgers did not
obtain the requisite authorization, the Court concludes that the motion for reconsideration out of
5
Rodgers resists this conclusion, asserting in his reply brief that he is merely
“attempting . . . to continue his appeal process” and suggesting he could not pursue a timely
appeal due to habeas counsel’s inaction. Dkt. # 25, Reply Br., at 1-2. As previously stated,
the time to appeal from the judgment entered against him in April 2020 expired in May 2020,
30 days after the entry of judgment. FED. R. APP. P. 4(a)(1)(A). Even if the Court could
construe the motion for reconsideration out of time, in part, as a motion seeking to reopen
the time to appeal, the Court lacks authority to grant that relief. Under FED. R. APP. P.
4(a)(6), a district court may reopen the time to appeal only if certain conditions are met.
Even accepting as true that Rodgers did not receive notice of the judgment until July 2, 2020,
he did not file the motion for reconsideration out of time within the earlier of either 180 days
after the judgment was entered or 14 days after he received notice of the judgment, as
required by FED. R. APP. P. 4(a)(6)(B). Thus, to the extent the motion for reconsideration out
of time could be construed, in part, as a motion to reopen the time to appeal, that motion is
denied.
8
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time, construed as a Rule 60(b)(6) motion and treated as a second or successive habeas petition must
be dismissed for lack of jurisdiction. Spitznas, 464 F.3d at 1217.6
B.
Motion to proceed in forma pauperis (Dkt. # 22)
When he filed the motion for reconsideration out of time, Rodgers also filed a motion to
proceed in forma pauperis (Dkt. # 22). Rodgers paid the $5 filing fee necessary to commence this
habeas action, see Dkt. # 3, when he filed his petition for writ of habeas corpus. And there is no
separate fee for filing a Rule 60(b) motion. Further, for reasons previously discussed, the time has
passed for Rodgers to file a timely appeal. For these reasons, the Court denies as moot the motion
to proceed in forma pauperis.
C.
Motion for enlargement of time (Dkt. # 24)
Lastly, on February 1, 2021, Rodgers filed a motion for enlargement of time, seeking an
additional 45 days “to perform the necessary legal actions with the aid of the law library, and many
resources it contains.” Dkt. # 24, at 1. It is not clear from the motion what “necessary legal actions”
Rodgers requested additional time to perform. However, the timing of the motion suggests he may
have been requesting additional time to file a reply brief. Because Rodgers filed a reply brief only
three days after he filed the motion for enlargement of time and there are no other deadlines pending,
the Court denies as moot the motion for enlargement of time.
6
The Court recognizes that it has discretion to transfer this matter to the United States Court
of Appeals for the Tenth Circuit for authorization under § 2244(b)(3)(A). See Spitznas, 464
F.3d at 1217; 28 U.S.C. § 1631. But the Court finds that dismissal without prejudice is more
appropriate than transfer because Rodgers does not face the “risk that a meritorious
successive claim will be lost.” In re Cline, 531 F.3d at 1252.
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ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
The motion for reconsideration out of time (Dkt. # 21), construed as a Rule 60(b)(6) motion
and treated as a second or successive habeas petition, is dismissed without prejudice for
lack of jurisdiction.
2.
To the extent the motion for reconsideration out of time (Dkt. # 21) could be construed, in
part, as a motion to reopen the time to appeal, that motion is denied.
3.
To the extent the motion for reconsideration out of time (Dkt. # 21) could be construed, in
part, as a “true” Rule 60(b) motion, that motion is denied and a certificate of appealability
is denied.
4.
The motion to proceed in forma pauperis (Dkt. # 22) is denied as moot.
5.
The motion for enlargement of time (Dkt. # 24) is denied as moot.
DATED this 25th day of March, 2021.
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