United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
closed federal habeas matter under 28 U.S.C. § 2255 is
before the Court on federal prisoner Donnell McCloud's
motion for “Rule 60(b) Relief from a Judgment or
Order.” The motion will be dismissed for failure to
obtain authorization from the Eighth Circuit Court of Appeals
to file a second or successive motion under § 2255.
November 26, 2008, a federal jury found movant guilty on
three counts of Production of Child Pornography. On February
29, 2009, the Court sentenced movant to thirty years on each
of the three counts, the sentences to run concurrently.
Movant filed a direct appeal, but the Eighth Circuit Court of
Appeals affirmed the conviction on December 29, 2009.
United States v. McCloud, 490 F.3d 560 (8th Cir.
2009). On October 3, 2011, movant filed a motion under §
2255 to vacate, set aside, or correct his sentence. The Court
held an evidentiary hearing on some of the claims in
movant's § 2255 motion, and issued a Memorandum and
Order denying all of movant's § 2255 claims on
January 15, 2015. The Court declined to issue a certificate
of appealability. Movant filed an appeal, but the Eighth
Circuit Court of Appeals also declined to issue a certificate
of appealability. Movant filed the instant Rule 60(b)(6)
motion on September 28, 2016.
Standard for Review of 60(b) Motion in Closed Habeas
federal prisoner may file a second or successive motion under
§ 2255 only after obtaining authorization to do so from
the appropriate United States Court of Appeals. 28 U.S.C.
§ 2255(h); see also 28 U.S.C. §
2244(b)(3). The Eighth Circuit has directed that where a
prisoner files a Rule 60(b) motion following the dismissal of
a habeas petition, the district court should file the motion
and then conduct a brief initial inquiry to determine whether
the allegations in the Rule 60(b) motion in fact amount to a
second or successive collateral attack under either 28 U.S.C.
§ 2255 or § 2254. Boyd v. United States,
304 F.3d 813, 814 (8th Cir. 2002). If the district court
determines the Rule 60(b) motion is actually a second or
successive habeas petition, it should dismiss the motion for
failure to obtain authorization from the Court of Appeals or,
in its discretion, transfer the purported Rule 60(b) motion
to the Court of Appeals. Boyd, 304 F.3d at 814.
“It is well-established that inmates may not bypass the
authorization requirement of 28 U.S.C. § 2244(b)(3) for
filing a second or successive . . . § 2255 action by
purporting to invoke some other procedure.” United
States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005)
(per curiam) (citing United States v. Patton, 309
F.3d 1093 (8th Cir. 2002) (per curiam), and Boyd,
304 F.3d at 814).
Supreme Court has held that a state prisoner's Rule 60(b)
motion challenging the denial of federal habeas corpus relief
that merely alleges a defect in the integrity of the habeas
proceedings and does not attack the merits of the decision to
deny the petition or present new grounds for relief from the
state conviction is not a second or successive habeas
petition subject to the restrictions on such petitions set
forth in the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Gonzalez v. Crosby, 545 U.S.
524, 535-36 (2005) (Rule 60(b) motion challenging district
court's previous ruling on AEDPA statute of limitations
was not the equivalent of a successive habeas petition). In
contrast, the Supreme Court has instructed that Rule 60(b)
motions should be treated as second or successive habeas
petitions where they assert or reassert a federal basis for
relief from the underlying conviction, including where a
motion seeks to present a claim of constitutional error
omitted from the movant's initial habeas petition, or
seeks vindication of a habeas claim by challenging the habeas
court's previous ruling on the merits of that claim.
Id. at 531-32.
Eighth Circuit has explained that under Gonzalez,
“A Rule 60(b) motion is a second or successive habeas
corpus application if it contains a claim. For the purpose of
determining whether the motion is a habeas corpus
application, claim is defined as an ‘asserted federal
basis for relief from a state court's judgment of
conviction' or as an attack on the ‘federal
court's previous resolution of the claim on the
merits.'” Ward v. Norris, 577 F.3d
925, 933 (8th Cir. 2009) (quoting Gonzalez, 545 U.S.
at 530, 532). “‘On the merits' refers
‘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).” Id.
(quoting Gonzalez, 545 U.S. at 532 n.4.) “When
a Rule 60(b) motion presents a claim, it must be treated as a
second or successive habeas petition under AEDPA.”
Supreme Court limited its holding in Gonzalez to the
application of Rule 60(b) in habeas proceedings filed by
state prisoners under 28 U.S.C. § 2254, see
Gonzalez, 545 U.S. at 529 n.3, even though the
provisions of §§ 2254 and 2255 concerning second or
successive motions are “similar.” Id.
The Eighth Circuit has applied the Gonzalez analysis
to second or successive motions under § 2255, however.
See Ward, 577 F.3d at 933.
Movant's Motion for Rule 60(b)(6) Relief
60(b) provides that a court may grant relief from a judgment
for the following specified grounds: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule
59(b); (3) fraud, misrepresentation, or other misconduct of
an adverse party; (4) the judgment is void; (5) the judgment
has been satisfied, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from
the operation of the judgment. See Fed.R.Civ.P. 60.
motion is based solely on Rule 60(b)(6). “Relief is
available under Rule 60(b)(6) only where exceptional
circumstances have denied the moving party a full and fair
opportunity to litigate his claim and have prevented the
moving party from receiving adequate redress.”
Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir. 2005).
motion raises the following three issues: (1) movant's
retained habeas counsel fraudulently told him that counsel
would include a claim in the § 2255 indictment based on
a fatal variance in the charging indictment, but counsel
intentionally failed to include such a claim; (2) in ruling
on the § 2255 motion, this Court did not properly
analyze defense counsel's role in the crimi n al c ase
under Strickland,  as it “never weighted [sic]
on how counsel['s] deficient performance prejudiced the
defense, ” Mot. at 10; and (3) “§ 2255 was
[the] improper vehicle to test petitioner's
constitutional claims” concerning the denial of
movant's requests for a trial continuance, an attorney of