United States District Court, E.D. Missouri, Eastern Division
JAMES N. TAYLOR, Petitioner,
JAY CASSADY AND CHRIS KOSTER, Respondents.
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
matter is before the Court on petitioner's motion to
alter or amend the September 22, 2016 Judgment denying his
habeas petition under Fed.R.Civ.P. 59(e) and 60(b)(6).
Rule 59 motion is denied as untimely, as a motion to alter or
amend a judgment must be filed within 28 days after the entry
of judgment. " court may grant relief under Rule
60(b)(6) for "any other reason that justifies
relief" when a motion is made "within a reasonable
time." Fed.R.Civ.P. 60(b)(6). Petitioners sometimes
request relief under Rule 60(b) when the motion is more
properly characterized as a successive ' 2254 petition.
See, e.g., Boyd v. United States,
304 F.3d 813, 814 (8th Cir. 2002). However, a state prisoner
may file a second or successive motion under ' 2254 only
after obtaining authorization to do so from the appropriate
United States Court of Appeals. 28 U.S.C. § 2244(b)(3).
Where a prisoner files a Rule 60(b) motion following the
dismissal of a habeas petition, the district court must
determine whether the allegations in the Rule 60(b) motion in
fact amount to a second or successive collateral attack under
28 U.S.C. § 2254. Boyd, 304 F.3d at 814. If the
Rule 60(b) motion "is actually a second or successive
habeas petition, the district court should dismiss it for
failure to obtain authorization from the Court of Appeals or,
in its discretion, may transfer the motion . . . to the Court
of Appeals." Id. "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
' 2254 . . . action by purporting to invoke some other
procedure." United States v. Lambros, 404 F.3d
1034, 1036 (8th Cir. 2005).
60(b) motion that merely alleges a defect in the integrity of
the habeas proceedings is not a second or successive habeas
petition. See Gonzalez v. Crosby, 545 U.S. 524,
535B36 (2005) (Rule 60(b) motion challenging district
court's previous ruling on statute of limitations was not
the equivalent of a successive habeas petition). " Rule
60(b) motion is also not a successive habeas petition if it
"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." Id. at 532 n.4.
However, a Rule 60(b) motion is a successive petition if it
contains a claim, which is defined as an "asserted
federal basis for relief" from a judgment of conviction
or as an attack on the "federal court's previous
resolution of the claim on the merits." Id. 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. Â§' 2254(a) and (d)." Id. at 532 n.
4. When a Rule 60(b) motion presents a claim, it must be
treated as a second or successive habeas petition.
motion will be denied. Petitioner challenges the Court's
ruling that his attorney was not ineffective for failing to
ask the trial court to question jurors about whether a juror
was sleeping during part of his trial. The Court denied this
ground on the merits, finding that the state court's
determination that counsel's performance was neither
defective nor prejudicial was not based on an unreasonable
application of Strickland v. Washington, 466 U.S.
668 (1994), or the facts in light of the evidence. As
petitioner has not obtained certification to file a
successive motion from the Eighth Circuit, petitioner's
successive petition will be denied. Even if the claim were
properly before me, it would still be denied for the reasons
also considered whether to issue a certificate of
appealability. To grant a certificate of appealability, the
Court must find a substantial showing of the denial of a
federal constitutional right. See Tiedeman v.
Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial
showing is a showing that issues are debatable among
reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings.
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997)
(citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th
Cir. 1994)). Because petitioner has not made such a showing,
I will not issue a certificate of appealability.
IT IS HEREBY ORDERED that petitioner's
motion to alter judgment [#27] is denied in part and
dismissed in part for lack of jurisdiction; the motion is
denied to the extent the motion is treated as one brought
under Rules 59(e) and 60(b)(6), and dismissed for lack of
jurisdiction as a second or successive habeas petition in all
IS FURTHER ORDERED that a certificate of
appealability is denied as petitioner has not made a
substantial showing of the ...