United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
1989, after a five day jury trial petitioner was convicted in
Missouri state court of two counts of forcible rape, two
counts of forcible sodomy, one count of robbery in the second
degree, and one count of felonious restraint. He was
sentenced as a prior, persistent and class X offender to life
imprisonment plus consecutive terms of imprisonment totaling
50 years. State v. Hill, 817 S.W.2d 609, 610
appealing his convictions and the denial of post-conviction
relief to the Missouri Court of Appeals, petitioner filed the
instant case for habeas relief under 28 U.S.C. § 2254.
This Court denied habeas relief on March 17, 2000. . The
Eighth Circuit Court of Appeals denied petitioner's
application for certificate of appealability and issued the
mandate. [38, 40]. Petitioner filed a motion to vacate the
judgment under Fed.R.Civ.P. 60(1) and (6) on February 15,
2001. . The motion was denied on February 20, 2001. .
Petitioner now moves to reopen his closed ' 2254 case
under Fed.R.Civ.P. 60(b)(6). .
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). A 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 treated as a successive petition and denied
because petitioner has not obtained certification to file a
successive motion from the Eighth Circuit. Petitioner again
attempts to challenge the state court's Batson
ruling and this Court's determination that the ruling did
not entitle petitioner to habeas relief. The state court
denied petitioner's Batson claim on the merits.
Hill, 817 S.W.2d at 610. In denying habeas relief,
this Court also considered and denied petitioner's claim
on the merits. [32 at 11-14]. Petitioner's motion
presents a claim and must be treated as a second or
successive habeas petition.
avoid characterization as a successive petition, petitioner
attempts to categorize his complaint as one attacking the
defect in the integrity of the proceedings. He argues that
the state court's prior ruling is really a procedural
defect because it applied the wrong standard to evaluate his
claim. Petitioner's argument is unavailing, for he is not
asserting a defect in the integrity of the habeas
proceedings. See Gonzalez, 545 U.S. at 535B36. A
claim that the state court improperly evaluated his claim
under the wrong standard is an attack on the merits of the
state court decision, and as such it must be treated as a
successive petition. Nor can petitioner allege that this
Court refused to consider his claim based on a procedural
ruling because it considered and denied each of
petitioner's claims, including both of his
Batson claims, on the merits. [32 at 11-16]. As
petitioner has not obtained certification to file a
successive motion from the Eighth Circuit, petitioner's
successive petition will be denied.
I have 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 for relief from judgment under Federal Rule of Civil
Procedure 60(b)(6)  is denied and dismissed as a second
or successive habeas petition filed without the required
precertification by the Eighth Circuit Court of Appeals
pursuant to 28 U.S.C. § 2244(b)(3).
IS FURTHER ORDERED that a certificate of
appealability is denied as petitioner has not made a
substantial showing of the ...