Lynch v. Crowther

Filing 87

MEMORANDUM DECISION AND ORDER DENYING POST-JUDGMENT MOTIONS-denying 68 Motion to Strike ; denying 69 Motion to Strike ; denying 74 Motion ; denying 76 Motion for Certificate of Appealability; denying 85 Motion to Disqua lify Judge. NO FURTHER FILINGS BY PETITIONER WILL BE ACCEPTED IN THIS CASE. The Clerk of Court is directed to return to sender any further filings attempted by Petitioner or his agents. This action is CLOSED. Signed by Judge David Sam on 4/3/19. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SHERMAN ALEXANDER LYNCH,
Petitioner,
v.
SHANE NELSON,

MEMORANDUM DECISION &
ORDER DENYING POSTJUDGMENT MOTIONS
Case No. 2:17-CV-00477-DS

Respondent.

District Judge David Sam

Several post-judgment motions by Petitioner are before the Court.
BACKGROUND
On November 21, 2018, this Court granted Respondent’s motion to dismiss this habeascorpus petition. (Doc. No. 59.) Petitioner’s original habeas petition brought the following claims
under 28 U.S.C.S. § 2254 (2019): prosecutorial misconduct and ineffective assistance of counsel.
Reasoning that all Petitioner’s challenges were procedurally defaulted and did not qualify for
exceptional treatment, the Court rejected Petitioner’s claims of actual innocence based on newly
discovered evidence.
RULE 60(b) MOTION
Petitioner asserts fraud in moving for relief from the final order and judgment. Fed. R.
Civ. P. 60(b)93). In support of his motion, Petitioner cites sixteen allegedly false statements of
fact or law made by Respondent in its Motion to Dismiss.
In relevant part, Rule 60(b) reads: “On motion and just terms, the court may relieve a
party . . . from a final judgment, order, or proceeding for the following reasons: (3) fraud . . .,

misrepresentation, or misconduct by an opposing party . . . .” Fed. R. Civ. P. 60(b).This rule
interplays with the federal habeas statute about second or successive habeas petitions. The
applicable statutory language states:
A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless-- . . .
(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C.S. § 2244(b)(1)(B) (2019).
Based on Tenth Circuit law, this Court must first determine “whether the motion is a true
Rule 60(b) motion or a second or successive petition.” Spitznas v. Boone, 464 F.3d 1213, 1217
(10th Cir. 2006); Gonzalez v. Crosby, 545 U.S. 524, 538 (2005) (clarifying not all 60(b) motions
in federal habeas cases are second or successive petitions). This Court has jurisdiction to rule on
of the [10th Circuit] pursuant to § 2244 before [they] may proceed in district court.” Id. at 1215

true Rule 60(b) arguments. However, “second or successive” issues must be “certified by a panel

(citing 28 U.S.C.S. § 2244 (2019)).

Gonzalez explains that “a 60(b) motion is a second or successive petition if it in
substance or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying
conviction.” Spitznas, 464 F.3d at 1215 (citing Gonzalez, 545 U.S. at 538). Gonzalez also states
that while a 60(b) motion alleging fraud may constitute a true 60(b) motion, such a determination
requires a more nuanced analysis. Id. at 1216. Such motions are only true 60(b) motions if the
alleged misconduct relates solely to fraud perpetrated on the federal habeas court; if the fraud

alleged includes (or implies) related fraud on the state court then it is not a true 60(b) motion, but
rather a second or successive petition upon which this court cannot rule. Id.
SECOND OR SUCCESSIVE ANALYSIS
The Tenth Circuit also made clear in Spitznas that “spurious attempts to re-cast
substantive arguments in the guise of ‘fraud on the court’ . . . will properly be treated as an
attempt to allege or re-allege substantive grounds for habeas relief, thus presenting a second or
successive petition.” Id. n.4. This well encompasses what Petitioner tries to do in his petition.
Petitioner’s allegations are far afield from Rule 60(b)’s standard; it is clear that his motion
merely restates his same substantive arguments under the guise of his fraud allegations. Thus, as
laid out in Spitznas, Petitioner’s motion is a second or successive petition over which this court
does not have jurisdiction. See 28 U.S.C.S. § 2244(a) (2019).
Petitioner may not file such a petition without authorization from the appropriate federal
court of appeals. Id. § 2244(b)(3)(A) (“Before a second or successive application permitted by
this section is filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application.”); see R.9, Rs.
Governing § 2254 Cases in the U.S. Dist. Cts.; In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008)
(citing United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006)) (“A district court does not
have jurisdiction to address the merits of a second or successive . . . § 2254 claim until [the Tenth
Circuit] has granted the required authorization.”). Petitioner did not obtain authorization from
the Tenth Circuit Court of Appeals to file his second or successive petition--i.e., this motion
labeled as a “Motion of 60(b).” This Court therefore does not have jurisdiction to address its
merits.

When a successive § 2254 petition is filed in a district court without the necessary
appellate court sanction, it may be transferred under 28 U.S.C.S. §1631 (2019), to the proper
court. Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997). However, all unauthorized
successive habeas petitions should not automatically be transferred to the Tenth Circuit. This
Court will only transfer if it determines that it is in the interest of justice to do so.
Here, it would not be in the interest of justice to transfer this petition to the Tenth Circuit.
To reach this conclusion, this Court considered whether Petitioner’s claims are likely to have
merit. In assessing this likelihood, this Court finds Petitioner’s claims of fraud by Respondent
lack factual and evidentiary support, and thus are without merit. What Petitioner’s motion shows
is not fraud, but a misunderstanding of (1) what fraud is, (2) the evidence necessary to prove it,
and (3) the Court’s role as independent decision maker.
Petitioner primarily seeks to prove fraud by quoting statements of law made in
Respondent’s Motion to Dismiss, (Doc. No. 32), comparing them to other of Respondent’s
statements that are arguably contradictory, then claiming that Respondent’s failure to include
these additional statements amounts to fraud. Respondent’s statements are clearly not
fraudulent. 1 All parties before a court have a duty to not purposefully misrepresent the rulings
they cite; they do not have an affirmative duty to cite every piece of tangentially related
precedent found in any case that touches on the same matter. Respondent did not misrepresent

1

Petitioner also seeks to prove fraud by quoting Respondent’s statements of fact. These factual claims mostly entail
Respondent’s arguments that Petitioner presented no new evidence on any factual challenges he made. Petitioner
contests this and contends he has presented such evidence and that Respondent’s failure to acknowledge this new
evidence amounts to fraud. Petitioner’s arguments show a profound misunderstanding of the adversarial process.
This Court finds these claims of fraud equally meritless.

any of the holdings it cited. Its failure to include every bit of additional language cited by
Petitioner does not begin to approach what would be necessary to prove fraud by Respondent.
However, even assuming, arguendo, that a party before this Court had misrepresented the
law in its briefings, this Court is more than capable of making that determination for itself. In
fact, that is specifically the role of the court in the adversarial process used by our nation’s legal
system: each party presents legitimate legal precedent and zealously strives to show why its
interpretation of that precedent is correct; the Court then independently examines those positions,
as well as the actual state of the law, and makes a final ruling as to what should be done.
Nothing outside of this usual process has occurred. There is no fraud here.
Additionally, this Court also noted that the Court of Appeals will not authorize the filing
of a second or successive habeas petition in the district court unless the petitioner can meet the
standard prescribed by § 2244(b)(2). Under that standard, the petitioner must show “that the
claim relies on a new rule of constitutional law, made retroactive” or that “the factual predicate
for the claim could not have been discovered previously through the exercise of due diligence”
and that the facts “would be sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.” 28 U.S.C. § 2244(b)(2) (2019). Petitioner has not addressed any of these
requirements.
The interests of justice would not be served by transferring the petition to the Tenth
Circuit. Petitioner has not stated any appropriate legal basis for being allowed to proceed with
this successive petition.

MOTION FOR RECUSAL ANALYSIS
Petitioner’s Motion for Recusal is based on a criminal petition which he filed against
Judge Sam alleging violations of 18 U.S.C.S. § 242 (2019)--i.e., deprivation of rights. Federal
judges may have an obligation to recuse themselves when their impartiality could reasonably be
questioned, but they also have an obligation not to recuse themselves when circumstances do not
require it. See In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312-13 (2d Cir. 1988); see
also Hutchinson v. Hahn, No. 09-5144, 2010 U.S. App. LEXIS 24194, at *12 (10th Cir. 2010)
(unpublished). The test used to determine whether recusal is required is an objective one. 28
U.S.C.S. § 455(a) (2013); see also Drexel, 861 F.2d at 1313. "Adverse rulings almost never
provide a basis for recusal, nor do opinions formed or expressed by a judge based upon the
record, 'unless they display a deep-seated favoritism or antagonism that would make fair
judgment almost impossible.'" Hutchinson, 2010 U.S. App. LEXIS 24194, at *12 (quoting Liteky
v. United States, 510 U.S. 540, 555 (1994)).
Based on the facts and law presented, this motion is entirely without merit. Petitioner has
offered no facts reasonably calling into question this judge's ability to impartially hear this case.
An examination of the criminal complaint shows that Petitioner offers no facts that would
reasonably call into question Judge Sam’s impartiality. Throughout both motions in question,
Petitioner continues to posit the same claims that this Court continues to reject. Petitioner’s
claims of prosecutorial misconduct and new evidence remain comfortably distant from meeting
the standard that would be required for this Court to consider them. Allowing any party before
this Court to file a criminal complaint against the presiding judge and have their case moved
regardless of the merits of that claim would be a policy ripe for abuse. It is not the policy of this

Court. Because Petitioner’s criminal complaint is without merit, his Motion for Recusal is
denied.
ORDER
IT IS ORDERED that Petitioner’s post-judgment motions are DENIED. (Doc. Nos. 68,
69, 74, 76, & 85.) NO FURTHER FILINGS BY PETITIONER WILL BE ACCEPTED IN
THIS CASE. The Clerk of Court is directed to return to sender any further filings attempted by
Petitioner or his agents.
This action is CLOSED.
DATED this 3rd day of April, 2019.
BY THE COURT:

DAVID SAM
Senior Judge
United States District Court