Parker v. Martin et al

Filing 49

ORDER dismissing 48 Petitioners Motion to Vacate Judgment as Void. Signed by Chief Judge Timothy D. DeGiusti on 4/28/2022. (mb)

Case 5:13-cv-01365-D Document 49 Filed 04/28/22 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ALVIN PARKER,

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Petitioner,
v.
TERRY MARTIN, Warden,
Respondent.

Case No. CIV-13-1365-D

ORDER
Before the Court is Petitioner’s Motion to Vacate Judgment as Void [Doc. No. 48].
Petitioner, who appears pro se, seeks relief under Fed. R. Civ. P. 60(b)(4) from the Order
and Judgment of May 8, 2014 [Doc. Nos. 23 and 24] dismissing for lack of jurisdiction his
second or successive habeas petition under 28 U.S.C. § 2254. 1 Petitioner asserts that the
judgment is void because “this Court acted in a manner inconsistent with due process by
concluding that petitioner’s allegations [in support of his successive § 2254 claim] are
factually unsupported.” See Mot. at 2. 2
Although Petitioner invokes Rule 60(b)(4), the Court must first determine whether
it is a “true” Rule 60(b) motion or an attempt to file a successive § 2254 petition. See
Spitznas v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006). Upon consideration, the Court

1

As a pro se litigant, Petitioner is entitled to liberal construction of his Motion. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
2

On appeal, the Tenth Circuit reached the same conclusion regarding the insufficiency
of Petitioner’s claim, found the petition was correctly dismissed, denied a certificate of
appealability, and dismissed the appeal. See Parker v. Martin, 589 F. App’x 866, 868-69, 870
(10th Cir. 2014) (unpublished).

Case 5:13-cv-01365-D Document 49 Filed 04/28/22 Page 2 of 2

finds that the Motion facially alleges a defect in the prior proceeding but actually attacks
the merits determination regarding his petition. Thus, it is not a true Rule 60(b) motion.
See id. at 1226 (reasserting claim under guise of attacking “the district court’s ruling that
the claim could not be considered, is itself in reality a second attempt to assert a successive
habeas claim”). “[A] purported Rule 60(b) motion that ‘in substance or effect asserts or
reasserts a federal basis for relief from the petitioner’s underlying conviction’ is actually a
second or successive habeas petition . . . .” United States v. Pedraza, 466 F.3d 932, 933
(10th Cir. 2006) (quoting Spitznas, 464 F.3d at 1215).
Because Petitioner’s Motion does not assert a “true” Rule 60(b)(4) claim, and
because Petitioner has not obtained the court of appeals’ authorization to file another
§ 2254 petition, this Court lacks jurisdiction to consider it. See 28 U.S.C. § 2244(b)(3).
Under the circumstances, where the court of appeals has already considered and rejected
Petitioner’s claim, the Court finds that the Motion should be dismissed rather than
transferred to the court of appeals. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). 3
IT IS THEREFORE ORDERED that Petitioner’s Motion to Vacate Judgment as
Void [Doc. No. 48] is DISMISSED.
IT IS SO ORDERED this 28th day of April, 2022.

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Alternatively, if the Motion could be considered a true Rule 60(b)(4), the Court would
find that it lacks merit and should be denied.
2