Long v. United States of America

Filing 53

ORDER denying 48 Motion to void judgment. Signed by U.S. District Judge Karen E. Schreier on 12/27/2019. Mailed to petitioner on 12/27/2019(MSB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GILLMAN RODDY LONG,
a/k/a Dave Gillman Long,
Petitioner,
vs.

5:14-CV-05022-KES
ORDER DENYING MOTION TO
VOID JUDGMENT

UNITED STATES OF AMERICA,
Respondent.
Petitioner, Gillman Roddy Long, moves the court under Federal Rule of
Civil Procedure 60(b)(4) to void this court’s prior judgment. Docket 48. The
United States opposes the motion. Docket 49. For the following reasons, the
court denies Long’s motion.
BACKGROUND
Long was indicted in the United States District Court for the District of
South Dakota, Western Division, on July 21, 2009. Cr. Docket 4. 1 The case
was tried to a jury, and Long was found guilty of two counts of Aggravated
Sexual Abuse and not guilty on one count of Aggravated Sexual Abuse. Cr.
Docket 212. Long was represented at trial by Monica Colbath. Cr. Docket 47.
After Long was found guilty, he moved to vacate the judgment and
requested a new trial. Cr. Docket 273. The court held that the government’s

Within this opinion, the court cites to documents in Long’s civil habeas case
by citing the court’s docket number. The court will cite to “Cr.” when citing to
documents filed in Long’s criminal case found at 5:09-CR-50051-KES.
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use of Long’s statement did not violate his Fifth Amendment rights because he
had not been arrested and was under no compulsion to speak. Cr. Docket 287
at 15. Therefore, Colbath could not be ineffective in her failure to object to the
government’s use of the statement. Id. The court also found that Long could
not show prejudice because overwhelming evidence supported his guilt, and he
could not prove Colbath’s actions were not sound trial strategy. Id. at 23. The
court denied Long’s motion. Id. Long was sentenced to life imprisonment.
Cr. Docket 290. Long’s conviction was affirmed by the Eighth Circuit Court of
Appeals. See United States v. Long, 721 F.3d 920, 927 (8th Cir. 2013).
Long then filed a motion to vacate, set aside or correct his sentence
under 28 U.S.C. § 2255. Docket 1. His petition asserted multiple grounds for
relief. The district court denied him relief and granted the government’s motion
to dismiss. Docket 32. The Eighth Circuit Court of Appeals affirmed this
dismissal. Docket 42. Long filed a petition for a writ of certiorari to the United
States Supreme Court. Docket 46. It was denied. Docket 47. Long now moves
under Rule 60(b)(4) to void the judgment of dismissal and claims that one of
the issues in his initial § 2255 petition was not addressed by the courts and as
a result, the order dismissing his § 2255 petition is void. Docket 48.
LEGAL STANDARD
Rule 60(b)(4) of the Federal Rules of Civil Procedure allows reopening of a
case when the movant shows that “the judgment is void[.]” Fed. R. Civ. P.
60(b)(4). When dealing with a purported Rule 60(b) motion after the dismissal
of a habeas petition, the district court should:
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conduct[] a brief initial inquiry to determine whether the
allegations in the Rule 60(b) motion in fact amount to a second or
successive collateral attack under either 28 U.S.C. § 2255 or
§ 2254. If the district court determines the Rule 60(b) motion is
actually 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, may transfer the purported Rule
60(b) motion to the Court of Appeals. Depending on which course
of action the district court chooses, the petitioner may either
appeal the dismissal of the purported Rule 60(b) motion or, if the
district court has elected to transfer the purported 60(b) motion to
the Court of Appeals, await the action of the Court of Appeals.
Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002).
A motion under Rule 60(b)(4) in a § 2255 case should not “be treated as a
successive habeas petition if it does not assert, or reassert, claims of error in
the movant’s [prior] conviction.” Gonzalez v. Crosby, 545 U.S. 524, 538 (2005).
But when the Rule 60(b) motion “attacks the federal court’s previous resolution
of a claim on the merits,” it should be considered a second or successive
§ 2255 petition. Id. at 532. (emphasis in original).
DISCUSSION
Long argues that his initial § 2255 petition alleged multiple claims and
the court failed to address the third claim. Docket 48. He states that his third
claim alleged that his attorney provided ineffective assistance of counsel
because she failed to object to that portion of the government’s closing
argument where the prosecutor argued that Long “had not denied the
accusations against him.” Id. at 11. Long claims this was not addressed by the
district court or the Eighth Circuit Court of Appeals. Id. at 8. Because this
issue was not addressed by the courts, Long alleges that this is a true Rule
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60(b)(4) motion that should not be construed as a successive § 2255 petition.
Id. at 9-10. The government disagrees and contends that this resolution of this
claim would be a decision on the merits and as a result, must be treated as a
second or successive habeas petition under the Antiterrorism and Effective
Death Penalty Act (AEDPA) of 1996. Docket 49 at 5-6. Additionally, the
government claims that the district court in fact did resolve the issue. Id. at 67.
First, the court will consider whether the alleged failure of the district
court and the Court of Appeals to adjudicate Long’s third claim amounts to a
defect in the integrity of the prior § 2255 proceeding. The Eighth Circuit has
held that “[a] Rule 60(b) motion is a second or successive habeas corpus
application if it contains a claim.” Ward v. Norris, 577 F.3d 925, 933 (8th Cir.
2009). “For the purpose of determining whether the motion is a habeas corpus
application, claim is defined as an ‘asserted federal basis for relief from a
[federal] court’s judgment of conviction’ or as an attack on the ‘federal court’s
previous resolution of the claim on the merits.’ ” Id. (quoting Gonzalez, 545
U.S. at 530, 532). The term “ ‘[o]n the merits’ refers ‘to a determination that
there exist or do not exist grounds entitling a petitioner to habeas corpus
relief[.]’ ” Id. (quoting Gonzalez, 545 U.S. at 532 n.4). When a claim is
presented in a Rule 60(b) motion, the motion “must be treated as a second or
successive habeas petition under AEDPA.” Id.
Here, Long is raising a claim of ineffective assistance of counsel based on
his trial counsel’s alleged failure to object during closing argument. Docket 48.
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This claim asserts a federal basis for relief from his judgment of conviction. In
essence, he is attacking the prior resolution of his § 2255 proceeding that was
decided on the merits. This is not an instance where his case was decided
based on a procedural rule such as the statute of limitations. Instead, it was a
merits-based decision. Thus, this Rule 60(b)(4) motion must be treated as a
second or successive habeas petition under the AEDPA.
Second, the court will consider whether this issue in fact was previously
addressed by the district court. In its Order Granting Motion to Dismiss, this
court stated that “Colbath did object to the government stating in its closing
argument that Long did not say ‘I didn’t do it.’ ” Docket 32 at 3. After reviewing
the entire record of the trial proceedings, the court concluded that “Long has
not established that his trial counsel’s performance was deficient when she did
not move to suppress the evidence, object at trial, or object during closing
arguments.” Id. at 14. Thus, the court did consider any alleged errors in the
closing argument and found that the trial counsel’s performance did not
constitute ineffective assistance of counsel. Additionally, a review of the trial
transcript supports the trial court’s conclusion that Colbath did object to the “I
didn’t do it” statement. Immediately after the prosecutor states “He sure didn’t
say, ‘I didn’t do it,’ ” the defense attorney states “I’m going to object, Your
Honor. He did.” Cr. 296 at 87-88. The court then admonished the jury to rely
on their recollection of the evidence to determine what the evidence in fact
showed. Id. at 88. Because the issue has already been addressed on the merits,
Long’s motion here is a reassertion of a prior claim and under Gonzalez, Long
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needs to obtain authorization from the court of appeals to pursue this claim in
the district court.
CERTIFICATE OF APPEALABILITY
The federal statute governing certificates of appealability provides that
“[a] certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). A substantial showing of the denial of a constitutional right
requires that “issues are debatable among reasonable jurists, a court could
resolve the issues differently, or the issues deserve further proceedings.” Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997). Based on the record, and the law as
discussed herein, the court finds that Long has not made a substantial
showing of the denial of a constitutional right.
CONCLUSION
As discussed previously, Long has failed to establish that he is entitled to
relief. Thus,
IT IS ORDERED that
1. Long’s Rule 60(b)(4) motion to vacate (Docket 48) is denied.
2. A certificate of appealability is denied.
Dated December 27, 2019.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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