Opinion
CRIM. NO. 2:95-CR-0020.
March 3, 2010
OPINION AND ORDER
This matter is before the Court on petitioner's motion for successive § 2255 petition, Doc. No. 126, motion for reconsideration or alternatively for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), Doc. No. 129, motion to proceed in forma pauperis and for the appointment of counsel, Doc. No. 130, and motion for the appointment of counsel, Doc. No. 131.
Petitioner again seeks leave to file a successive motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. He bases this request on allegedly newly discovered evidence indicating that witness identifications were tainted by unnecessarily suggestive procedures by the FBI who showed "a six picture photo-array of substantive factors of irregularities." Petition, at 4. Petitioner contends that, because this claim is based on newly discovered evidence, he was unable to raise the issue in earlier § 2255 proceedings. See id.
As discussed in this Court's Order of March 29, 2005, Doc. No. 109, this Court lacks authorization to consider a successive motion to vacate under 28 U.S.C. § 2255 unless petitioner first obtains authorization for the successive filing from the United States Court of Appeals for the Sixth Circuit. See 28 U.S.C. 2244(b)(3)(A); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) ( per curiam). Petitioner's motion for successive § 2255 petition, Doc. No. 126, is therefore ORDERED TRANSFERRED to the United States Court of Appeals for the Sixth Circuit for authorization for filing a successive petition.
To the extent that petitioner attempts to raise this same claim in his motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), this Court likewise lacks jurisdiction to consider that claim absent prior authorization from the United States Court of Appeals for the Sixth Circuit. In Gonzalez v. Crosby, 545 U.S. 524, 532 (2005), the United States Supreme Court held that a motion under Rule 60(b) that seeks to assert a new substantive claim for habeas relief must be treated as a successive petition for which prior authorization is required.
In some instances, a Rule 60(b) motion will contain one or more "claims." For example, it might straightforwardly assert that owing to "excusable neglect," Fed. Rule Civ. Proc. 60(b)(1), the movant's habeas petition had omitted a claim of constitutional error, and seek leave to present that claim. Cf. Harris v. United States, 367 F.3d 74, 80-81 (C.A.2 2004) (petitioner's Rule 60(b) motion sought relief from judgment because habeas counsel had failed to raise a Sixth Amendment claim). Similarly, a motion might seek leave to present "newly discovered evidence," Fed. Rule Civ. Proc. 60(b)(2), in support of a claim previously denied. E.g., Rodwell v. Pepe, 324 F.3d 66, 69 (C.A.1 2003). Or a motion might contend that a subsequent change in substantive law is a "reason justifying relief," Fed. Rule Civ. Proc. 60(b)(6), from the previous denial of a claim. E.g., Dunlap v. Litscher, 301 F.3d 873, 876 (C.A.7 2002). Virtually every Court of Appeals to consider the question has held that such a pleading, although labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated accordingly. E.g., Rodwell, supra, at 71-72; Dunlap, supra, at 876.
We think those holdings are correct. A habeas petitioner's filing that seeks vindication of such a claim is, if not in substance a "habeas corpus application," at least similar enough that failing to subject it to the same requirements would be "inconsistent with" the statute. 28 U.S.C. § 2254 Rule 11. Using Rule 60(b) to present new claims for relief from a state court's judgment of conviction-even claims couched in the language of a true Rule 60(b) motion-circumvents AEDPA's requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts. § 2244(b)(2). The same is true of a Rule 60(b)(2) motion presenting new evidence in support of a claim already litigated: Even assuming that reliance on a new factual predicate causes that motion to escape § 2244(b)(1)'s prohibition of claims "presented in a prior application," § 2244(b)(2)(B) requires a more convincing factual showing than does Rule 60(b). Likewise, a Rule 60(b) motion based on a purported change in the substantive law governing the claim could be used to circumvent § 2244(b)(2)(A)'s dictate that the only new law on which a successive petition may rely is "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." In addition to the substantive conflict with AEDPA standards, in each of these three examples use of Rule 60(b) would impermissibly circumvent the requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive-petition bar. § 2244(b)(3).
In most cases, determining whether a Rule 60(b) motion advances one or more "claims" will be relatively simple. A motion that seeks to add a new ground for relief, as in Harris, supra, will of course qualify. A motion can also be said to bring a "claim" if it attacks the federal court's previous resolution of a claim on the merits,FN4 since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief.
That is not the case, however, when a Rule 60(b) motion attacks, not 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.FN5
FN4. The term "on the merits" has multiple usages. See, e.g., Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 501-503, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). We refer here to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d). When a movant asserts one of those grounds (or asserts that a previous ruling regarding one of those grounds was in error) he is making a habeas corpus claim. He is not doing so when he merely asserts that a previous ruling which precluded a merits determination was in error-for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.
FN5. Fraud on the federal habeas court is one example of such a defect. See generally Rodriguez v. Mitchell, 252 F.3d 191, 199 (C.A.2 2001) (a witness's allegedly fraudulent basis for refusing to appear at a federal habeas hearing "relate[d] to the integrity of the federal habeas proceeding, not to the integrity of the state criminal trial"). We note that an attack based on the movant's own conduct, or his habeas counsel's omissions, see, e.g., supra, at 2647, ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably.Id., at 530-532. Because petitioner's new claim seeks to challenge the underlying criminal trial, and not the integrity of the proceedings under § 2255, petitioner must first obtain authorization from the Court of Appeals before he can pursue that claim in this Court.
Gonzalez involved a challenge to a state conviction under 28 U.S.C. § 2254. The Gonzalez holding has been applied to Rule 60(b) motions raised in § 2255 proceedings. In re Nailor, 487 F.3d 1018 (6th Cir. 2007).
Petitioner also argues that the United States Court of Appeals for the Sixth Circuit erred in denying his prior request to file a successive § 2255 petition. See Motion for Relief From Judgment, Doc. No. 129. However, this Court also lacks authority to grant petitioner relief from a judgment of the Court of Appeals. Therefore, petitioner's Rule 60(b) motion, Doc. No. 129, is DENIED.
It follows, in light of the foregoing, that petitioner's motions for leave to proceed in forma pauperis, Doc. No. 130, and for the appointment of counsel, Doc. No. 131, are without merit.
The Court cautions petitioner that his continued filing of further successive § 2255 petitions or of motions seeking to raise new grounds for § 2255 relief constitutes an abuse of the judicial process and may result in the imposition of sanctions against him.
[P]risoners who persist in flooding the courts with frivolous and repetitive actions that waste the courts' time and resources . . . risk being sanctioned for doing so, including losing their ability to proceed in forma pauperis with respect to their future civil actions, as well as being subjected to a substantial fine. As the Supreme Court noted in [ In re McDonald, 489 U.S. 180, 184 (1980)], "Every paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources. A part of the Court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice. The continual processing of petitioner's frivolous requests for extraordinary writs does not promote that end."In re Walker, 238 F.3d 426 (Table), 2000 WL 1517155 *2 (6th Cir., August 4, 2000); see also Antonelli v. Grondolski, 2007 WL 3231548 (E.D. Kentucky, October 30, 2007), citing Chambers v. NASCO, Inc., 502 U.S. 32, 44 (1991); In re Prevot, 59 F.3d 556, 563-64 (6th Cir. 1995).
Therefore, petitioner's motion for successive § 2255 petition, Doc. No. 126, is ORDERED TRANSFERRED to the United States Court of Appeals for the Sixth Circuit for authorization for filing a successive petition. Petitioner's motion for reconsideration or for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), Doc. No. 129, petitioner's motion to proceed in forma pauperis, Doc. No. 130, and petitioner's motion for the appointment of counsel, Doc. No. 131, are DENIED.