Opinion
No. 5:03-cv-143-DPM
09-18-2015
JASON FARRELL McGEHEE PETITIONER v. WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
ORDER
McGehee's motion to reconsider is denied. Unlike the claim in Panetti v. Quarterman, 551 U.S. 930 (2007), McGehee's claim—that the death penalty is categorically unconstitutional—was ripe and available when he filed his habeas petition. The contours of the claim look different today than they would have then. But as the Supreme Court noted in an abuse-of-the-writ case, the fact that "evidence discovered later might also have supported or strengthened" McGehee's claim doesn't save it. McCleskey v. Zant, 499 U.S. 467, 497-98 (1991). And McGehee can't avoid this conclusion through careful issue framing.
McGehee's Rule 60(b) motion 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." Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005) (quoting 28 U.S.C. § 2254 and Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts). He therefore needs permission from the Court of Appeals to proceed. 28 U.S.C. § 2244(b). In light of Gonzalez, this isn't a matter about which reasonable jurists could disagree.
Motion to reconsider, No 52, denied.
So Ordered.
/s/_________
D.P. Marshall Jr.
United States District Judge
18 September 2015