Pratt v. People of the State of South Dakota

Filing 36

ORDER denying 35 Motion for relief under Rule 60(b)(5) of the Fed.R.Civ.P.. Signed by U.S. District Judge Lawrence L. Piersol on 6/20/2018. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

ROBERT MERLE PRATT,
Petitioner,

4:17-CV-04115-LLP

V
ORDER

vs.

PEOPLE OF THE STATE OF SOUTH

DAKOTA;BOB DOOLEY;and THE
ATTORNEY GENERAL OF THE STATE OF

SOUTH DAKOTA,

Respondents.

Petitioner Robert Merle Pratt has filed what he characterizes as a motion under Fed. R.

Civ. P 60(b)(5). Under Federal Rule of Civil Procedure 60(b)(5), a court can provide a party with
relieffrom a final judgment if"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." Fed. R. Civ. P. 60(b)(5). However,inmates may not bypass the authorization

requirement for filing a second or successive motion under 28 U.S.C. § 2254 "by purporting to
invoke some other procedure." United States v. Lambros,404 F.3d 1034, 1036(8th Cir.2005)
(quoting United States v. Patton, 309 F.3d 1093 (9th Cir.2002).

The Eighth Circuit Court of Appeals has encouraged district courts to conduct an inquiry
into whether a purported Rule 60(b) motion following the dismissal of a habeas petition is

actually a second or successive collateral attack under either 28 U.S.C. § 2254 or § 2255. Boyd v.
United States, 304 F.3d 813(2002). If the court determines the Rule 60(b) motion is a second or

successive habeas petition, the district court should dismiss it for failure to obtain authorization

from the Court of Appeals, or in its discretion transfer the purported Rule 60(b) motion to the
Court of Appeals. Id. The petitioner may then either appeal the dismissal of the motion or, if
transferred by the district court, await the action of the Court of Appeals. Id.
The Court finds that Pratt's Rule 60(b) motion must be construed as a petition imder

§ 2254. He is attempting to file successive motions for post-conviction relief. Having failed to
obtain the requisite certificate of appealability from the Court of Appeals, his motion must be
denied. Accordingly,

IT IS ORDERED that Petitioner's Rule 60(b) motion, Doc. 35, is DENIED.
DATED June

■A

2018.
BY THE COURT:

ATTEST:

MATTHEW W. THELEN, CLERK

Iwrence L. Piersol

United States District Judge
BYf

(SB

DEPUTY