White Horse v. United States of America

Filing 16

ORDER denying 11 Motion for Relief Pursuant to Rule 60(b). Signed by U.S. District Judge Karen E. Schreier on 2/22/2016. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GUY RANDY WHITE HORSE,

5:15-CV-05010-KES

Petitioner,
ORDER DENYING MOTION UNDER
RULE 60(B)

vs.
UNITED STATES OF AMERICA,
Respondent.

Petitioner, Guy Randy White Horse, moves under Rule 60(b) to excuse
his procedural default under the Antiterrorism and Effective Death Penalty Act
of his habeas corpus action because he has newly discovered evidence to meet
the cause and prejudice standards. The government responds that the motion
should be denied because it is in essence a successive petition that has not
been certified by the court of appeals pursuant to 28 U.S.C. § 2244(3)(A). The
government also contends that Rule 60 cannot be used to correct a criminal
judgment.
White Horse’s conviction was affirmed on direct appeal in United States v.
White Horse, 316 F.3d 769 (8th Cir. 2003). This court’s denial of his habeas
corpus petition was affirmed on appeal in White Horse v. United States, 209 F.
App’x 610 (8th Cir. 2006). This court dismissed an attempt at a successive
petition by text order on January 28, 2015. See 01-50002, Docket 135. And it

dismissed a third attempt at a successive petition by written order on May 4,
2015. See 15-5010, Docket 6.
White Horse now moves under Rule 60(b) to vacate the most recent order
denying him relief. “Rule 60(b) allows a party to seek relief from a final
judgment, and request reopening of his case, under a limited set of
circumstances, including fraud, mistake, and newly discovered evidence.”
Gonzalez v. Crosby, 545 U.S. 524, 529 (2005). The Supreme Court has
recognized that a motion under Rule 60(b) to present newly discovered evidence
in support of a claim “is in substance a successive habeas petition and should
be treated accordingly.” Id. at 531. “[U]se of Rule 60(b) would impermissibly
circumvent the requirement that a successive habeas petition be pre-certified
by the court of appeals[.]” Id. at 532.
White Horse claims he has newly discovered evidence that was not
available at the time of trial. This is a substantive claim that in essence is a
successive petition. Whether this evidence meets the standard set forth in 28
U.S.C. 2255(h)(1) to authorize the filing of a second or successive petition is an
issue for the court of appeals to determine. See 28 U.S.C. §§ 2255(h)(1) and
2244. This court cannot proceed until the court of appeals has authorized a
successive petition.1 Without the authorization, the court must dismiss the
petition. 28 U.S.C. § 2244(b)(4).

In its most recent consideration of such an application, the Court of Appeals
rejected the petitioner’s request. White Horse v. United States, No. 15-3303
(8th Cir. December 1, 2015).
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Therefore, it is
ORDERED that the motion under Rule 60(b) (Docket 11) is denied.
Dated February 22, 2016.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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