Opinion
No. 3-02-CV-2371-D
November 19, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Rubin Notha McNeely, Jr. has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a motion to set aside the judgment entered in a prior habeas case. For the reasons stated herein, the habeas petition should be dismissed without prejudice pending review by a three-judge panel of the court of appeals. The motion to set aside judgment should be denied.
I.
Petitioner was convicted on multiple counts of aggravated robbery and sentenced to life imprisonment. His conviction and sentence were affirmed on direct appeal and state collateral review. McNeely v. State, No. 05-86-00291-CR (Tex.App.-Dallas, Jun. 6, 1989, pet. ref'd); Ex parte McNeely, Nos. 20,786-01 20,786-02 (Tex.Crim.App. Nov. 22, 1989). Petitioner also challenged his conviction in federal court. The district court granted habeas relief and ordered a new punishment hearing. McNeely v. Lynaugh, No. 3-90-CV-0782-D (N.D. Tex. Oct. 2, 1991). However, the Fifth Circuit reversed and vacated the judgment. McNeely v. Collins, No. 91-7125 (5th Cir. May 20, 1992).
On September 19, 2001, petitioner filed a motion to set aside the judgment in his habeas case pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. As grounds for his motion, petitioner alleged that his underlying conviction was void because the state trial judge did not make certain filings before taking the oath of office. The court construed this motion as an application for writ of habeas corpus and dismissed it as successive. McNeely v. Cockrell, No. 3-90-CV-0782-D (N.D. Tex. Jan. 25, 2002). The Fifth Circuit denied a certificate of appealability. McNeely v. Cockrell, No. 02-10209 (5th Cir. Jun. 20, 2002).
While his appeal was pending, petitioner filed a second motion to set aside judgment. This time he alleged that counsel for respondent in the federal habeas case, Assistant Attorney General Victoria Benitez, was not authorized to act on behalf of the state because she never filed an antibribery statement before taking the oath of office. Petitioner also challenged the authority of Assistant Attorney General Erich Dryden, who replaced Benitez as respondent's counsel. The district court construed this motion as a successive habeas petition and dismissed it without prejudice. McNeely v. Cockrell, No. 3-90-CV-0782-D (N.D. Tex. Sept. 24, 2002). Petitioner has filed a notice of appeal with respect to that decision.
Undeterred, petitioner has now filed a second application for writ of habeas corpus and a third motion to set aside judgment. Both pleadings were filed under the same cause number and are premised on the identical ground — that Benitez and Dryden never filed anti-bribery statements with the Texas Secretary of State. Petitioner alleges that this constitutes a fraud on the court and somehow invalidates the judgment denying federal habeas relief.
II.
The court initially observes that, to the extent petitioner attempts to challenge his state conviction on this ground, he is precluded from doing so under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (1996). A state prisoner may not file a successive application for federal habeas relief unless the application is based on: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2244 (b)(2). This determination must be made by a three-judge panel of the court of appeals before petitioner files his application in district court. Id. § 2244.
The Fifth Circuit has not issued an order authorizing the district court to consider a successive application for habeas relief. Petitioner must obtain such an order before another section 2254 petition is filed.
III.
Nor is petitioner entitled to relief from the judgment entered in his prior habeas case. A district court may grant relief from a final judgment "[o]n motion and upon such terms as are just . . ." FED. R. CIV. P. 60(b). "Fraud upon the court" can be grounds for a Rule 60(b) motion. Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978). However, the movant must show "an unconscionable plan or scheme which is designed to improperly influence the court in its decision." Id., quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960). This type of fraud implies egregious misconduct, such as bribery of a court official or fabrication of evidence by an attorney. First Nat'l Bank of Louisville v. Lustig, 96 F.3d 1554, 1573 (5th Cir. 1996), citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944). The movant must show that the misconduct at issue prevented him from fully and fairly litigating his case. Id. at 1572.
The Fifth Circuit has held that a motion raising new claims after the entry of final judgment is properly viewed as a successive habeas petition. See Behringer v. Johnson, 75 F.3d 189, 190 (5th Cir.), cert. denied, 116 S.Ct. 1284 (1996); Williams v. Whitley, 994 F.2d 226, 230-31 n. 2 (5th Cir.), cert. denied, 114 S.Ct. 608 (1993). However, the grounds raised by petitioner in his motion implicate the validity of the prior federal habeas proceeding — not the underlying state court judgment. Therefore, the motion is properly brought under Rule 60(b).
Assuming arguendo that Benitez and Dryden were required to file anti-bribery statements with the Texas Secretary of State and failed to do so, petitioner has not shown how this administrative oversight prevented him from "fully and fairly litigating his [habeas] case." Accordingly, he is not entitled to relief under Rule 60(b).
Article 16, § 1 of the Texas Constitution provides, in pertinent part:
(b) All elected or appointed officers, before taking the Oath or Affirmation of office prescribed by this section and entering upon the duties of office, shall subscribe to the following statement:
"I, ___________, do solemnly swear (or affirm) that I have not directly or indirectly paid, offered, promised to pay, contributed, or promised to contribute any money or thing of value, or promised any public office or employment for the giving or withholding of a vote at the election at which I was elected or as a reward to secure my appointment or confirmation whichever the case may be, so help me God."
(c) Members of the Legislature, the Secretary of State, and all other elected and appointed state officers shall file the signed statement required by Subsection (b) of this section with the Secretary of State before taking the Oath or Affirmation of office prescribed by Subsection (a) of this section. All other officers shall retain the signed statement required by Subsection (b) of this section with the official records of the office.
TEX. CONST. art. 16, § 1. In support of his motion, petitioner attaches certificates from the Texas Secretary of State indicating that neither Benitez nor Dryden have filed anti-bribery statements. However, the certificates further state that this "does not constitute a conclusion that the document should have been filed." (Pet. Mot., Exhs. 1 2).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice pending review by a three-judge panel of the court of appeals. His motion to set aside judgment should be denied.