United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
closed federal habeas matter under 28 U.S.C. § 2254 is
before the Court on Petitioner Douglas Thompson's Motion
for Relief from Judgment under Fed.R.Civ.P. 60(b)(6) (Doc.
No. 49). Respondent filed its Response to Court Order (Doc.
No. 54); Petitioner filed a Reply (Doc. No. 56). The motion
is fully briefed and ready for disposition.
April/May of 1992, this Court received by transfer from the
Western District of Missouri, a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254, filed by Thompson
challenging his 1984 conviction of first-degree murder for
the death of a police officer, Herbert Goss. On August 17,
1992, the matter was referred to United States Magistrate
Judge Catherine D. Perry for her report and recommendation
pursuant to 28 U.S.C. § 636(b).
raised the following claims in support of his petition:
1. Although petitioner was charged with “specific
intent murder under section 559.010 R.S. Mo. 1959” his
jury was improperly told, without proper notice to
petitioner, that it could find him guilty of first degree
murder through jury instructions 8 and 9 if he or another
caused the death of Goss (Second Amended Petition,
¶¶ 1(A)-(B) and (F)-(G)) (“notice
2. Petitioner's jury instructions relieved the state of
its burden of proving that petitioner killed Goss willfully,
deliberately, with premeditation, or with malice aforethought
(Second Amended Petition, ¶¶ 1(C)-(E))
Perry found the claims abusive of the writ because Thompson
failed to demonstrate legally sufficient cause for failing to
raise the claims in his earlier petitions or that the
court's failure to entertain these claims would
constitute a fundamental miscarriage of justice. (Report and
Recommendation of United States Magistrate Judge, Doc. No. 30
at 13-16) Alternatively, Judge Perry found that none of
Thompson's claims stated a claim for habeas relief and
denied each one on the merits. (Id. at 16-22)
January 31, 1994, the district court sustained the
Magistrate's Report and Recommendation and denied
Thompson's petition. (Doc. No. 35) On appeal, the Eighth
Circuit did not address whether Thompson's petition was
an abuse of the writ, but affirmed the district court's
determination that Thompson's habeas claims were either
procedurally barred or without merit. See Thompson v. Mo. Bd.
of Probation and Parole, 39 F.3d 186 (8th Cir. 1994),
cert. denied, 514 U.S. 1113 (1995).
13, 2017, Thompson moved to reopen this closed § 2254
case pursuant to Fed.R.Civ.P. 60(b)(6). Respondent opposes
the motion and argues that Thompson is not entitled to the
relief he seeks because review of his claims is barred by 28
U.S.C. § 2244(b) and because his motion is untimely.
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 Court determines
a Rule 60(b) motion to be a second or successive habeas
petition, the Court must dismiss it for failure to obtain
authorization from the Court of Appeals, or alternatively
transfer the motion to the Eighth Circuit. 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 is considered a second or successive habeas
petition if it contains a “claim.” Ward v.
Norris, 577 F.3d 925, 933 (8th Cir. 2009). A Rule 60(b)
motion contains a claim if it “seeks to add a new
ground for relief” or “attacks the federal
court's previous resolution of a claim on the
merits.” Gonzalez v. Crosby, 545 U.S. 524, 532
(2005). A petitioner may use a Rule 60(b) motion to challenge
a procedural ruling of the habeas court or a defect in the
integrity of his federal habeas proceedings, but a motion
attacking the merits of the denial of a claim in a prior
habeas proceeding or asserting or reasserting a federal basis
for relief from the underlying conviction must be treated as
a second or successive section habeas petition. Id.
Antiterrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. § 2244, imposes three ...