Campbell v. Myers, et al

Filing 29

ORDER DENYING Motion for Coram Vobis Under Rule 60(b) 24 and DENYING AS MOOT Motion for Appointment of Counsel 25 . Signed by Judge Samuel H. Mays, Jr on 10-16-2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

George Campbell, Jr.,
Petitioner,
v.
Kevin Myers,
Respondent.

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Cv. No. 03-02926-SMH

ORDER

Before the Court are two motions, both filed by Petitioner
George Campbell, Jr. on June 26, 2017: (1) Motion for Coram
Vobis Under Rule 60(b) (“Rule 60(b) Motion”) (ECF No 24), and
(2) Motion for Appointment of Counsel (ECF No. 25).

Petitioner

seeks to reopen his convictions in State v. Campbell, No. 02-C01-9408-CR00165, 1996 WL 368224, at *1 (Tenn. Crim. App. June
28, 1996), perm. app. denied (Tenn. Jan. 6, 1997).
For the following reasons, the Rule 60(b) Motion is DENIED,
and the Motion for Appointment of Counsel is DENIED AS MOOT.
I.

Background
Following a jury trial in the Shelby County Criminal Court,

Petitioner was convicted of felony murder and aggravated assault
in 1994.

Campbell, 1996 WL 368224, at *1.

He was sentenced to

life in prison with the possibility of parole on the murder

conviction and to a consecutive term of ten years in prison on
the assault conviction.

Id.

The Tennessee Court of Criminal

Appeals affirmed both convictions.
On

December

8,

2003,

Id. at *6.

Petitioner

filed

a

federal

habeas

petition under 28 U.S.C. § 2254 challenging his convictions.
(ECF No. 2 at 315-34.)1

The petition argued that the evidence

against Petitioner was insufficient to support his convictions,
that the trial court lacked subject matter jurisdiction, and
that he was actually innocent.

(Id.)

This court dismissed the

petition, finding that Petitioner’s claims lacked merit.
No. 10; see also ECF No. 11.)

(ECF

Petitioner’s requests for a

certificate of appealability were denied.

(Id.)

On May 16, 2014, Petitioner moved for authorization to file
a second or successive § 2254 petition.

(In Re Campbell, No.

14-5594 (W.D. Tenn. May 16, 2014), ECF No. 1-1.)

Petitioner

argued that his conviction was based on perjured testimony and
that the prosecution withheld 137 pages of evidence in his case
and made false statements about the existence of exculpatory
evidence.

(Id. at 9.)

The Sixth Circuit denied Petitioner’s

motion because “[t]he claims he seeks to raise are not based on
a new rule of constitutional law, and [Petitioner] has not made

1

Unless otherwise noted, all pin cites for record citations are to the
“PageID” page number.

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a prima facie showing that the new evidence clearly establishes
his innocence.”

(ECF No. 23 at 43.)

On June 26, 2017, Petitioner filed this Rule 60(b) Motion
and Motion for Appointment of Counsel.
Rule

60(b)

because

Motion

“[n]ewly

asks

that

discovered

(ECF Nos. 24-25.)

Petitioner’s

case

evidence/fact(s)

be

show[]

probability that petitioner is actually innocent.”

The

reopened
a

high

(ECF No. 24

at 46.)

The Motion for Appointment of Counsel asks the Court to

appoint

counsel

on

Petitioner’s

behalf

“throughout this [Rule] 60(b) Motion.”

to

represent

him

(ECF No. 25 at 180.)

II. Analysis
Petitioner’s Rule 60(b) Motion asks the Court to “reopen
the habeas corpus judgment and give [Petitioner] one fair shot
at habeus review.”

(ECF No. 24 at 54.)

The Court construes the

Rule 60(b) motion as a motion to reopen his § 2254 motion.
Rule 60(b)2 allows a party to seek relief from a final
judgment or order for, among other reasons, newly discovered
evidence and “any other reason that justifies relief.”
Civ.

P.

60(b).

A

Rule

60(b)

motion

does

not

Fed. R.

attack

“the

substance of the federal court's resolution of a claim on the
merits, but some defect in the integrity of the federal habeas
proceedings.”

Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).

In

a habeas case, when “[a] Rule 60(b) motion . . . attempts ‘to
2

References to “Rule __” are to the Federal Rules of Civil Procedure.

3

add a new ground for relief ‘[it] is effectively a motion to
vacate, set aside, or correct the sentence, and thus should be
considered a § [2254] motion.’”3

In re Nailor, 487 F.3d 1018,

1022 (6th Cir. 2007) (citing Gonzalez, 545 U.S. at 532).

A

successive motion to vacate that is labeled a Rule 60(b) motion
requires authorization from the Court of Appeals before filing
under § 2244(b).

In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).

Petitioner argues that he is entitled to relief on the
basis

of

“[n]ewly

discovered

evidence/fact(s)

showing

probability that petitioner is actually innocent.”
at 46.)

Petitioner claims that,

a

high

(ECF No. 24

because the government has

“knowingly withheld/hid Brady material . . . before, during and
after this trial,” Petitioner was “wrongfully convicted.”

(Id.

at 46.)
Although styled a Rule 60(b) motion, Petitioner does not
challenge

the

integrity

of

the

habeus

proceedings.

Rather,

Petitioner attempts to add a new ground for habeus relief -that the government withheld evidence during Petitioner’s trial.
(Id.)

The Motion thus “attacks the federal court’s previous

resolution of [Petitioner’s] claim on the merits.”
545 U.S. at 532.
2254.

Gonzalez,

The Court must treat it as a motion under §

In re Nailor, 487 F.3d at 1023.
3

Whether the evidence

Although the Sixth Circuit in In re Nailor, 487 F.3d 1018, 1022-23
(6th Cir. 2007) dealt with motions pursuant to 28 U.S.C. § 2255, the holding
in Gonzalez applies to petitions under § 2254.

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establishes Petitioner’s innocence is a matter that Petitioner
must raise in a § 2254 motion.

28 U.S.C. § 2244(b)(2)(b).

Petitioner also cites Buck v. Davis, 137 S. Ct. 759 (2017)
to support the claim that he is entitled to relief “based on a
change in procedural law.”

(Id. at 54.)

Petitioner does not

explain how Buck affects his argument.

In Buck, the United

States Supreme Court held that Buck was entitled to Rule 60(b)
relief

because

of

the

extraordinary

circumstance

capital sentence was tainted by racism.
777-80.

Petitioner

tainted by racism.

does

not

allege

that

his

Buck, 137 S. Ct. at
that

his

sentence

was

Buck does not entitle him to relief.

The Court would ordinarily transfer Petitioner’s motion to
the

Sixth

Circuit

for

necessary.

On

Petitioner’s

motion

review

December
for

30,

of

his

2014,

the

authorization

successive § 2254 petition.

motion.
Sixth
to

That
Circuit

file

(ECF 23 at 42-45.)

a

is

not

denied

second

or

Petitioner’s

motion sought relief based on the same newly discovered evidence
Petitioner

claims

in

this

Rule

60(b)

Motion.

(Id.

at

43

(“[Petitioner] contends that the prosecutor withheld 137 pages
of evidence in his case and made false statements regarding the
existence of exculpatory evidence.”).)

Petitioner’s Rule 60(b)

Motion is DENIED.
Petitioner’s

Motion

for

Appointment

of

Counsel

asks

the

Court to appoint counsel to represent Petitioner on the Rule
5

60(b) Motion.

Because the Petitioner’s Rule 60(b) Motion is

denied, the Motion for Appointment of Counsel is DENIED AS MOOT.
III. Conclusion
For the foregoing reasons, the Rule 60(b) Motion is DENIED,
and the Motion for Appointment of Counsel is DENIED AS MOOT.

So ordered this 16th day of October, 2017.

/s/ Samuel H. Mays, Jr._____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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