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Thompson v. Missouri Board of Parole

United States District Court, E.D. Missouri, Eastern Division

March 26, 2018

DOUGLAS THOMPSON, Petitioner,
v.
MISSOURI BOARD OF PAROLE, Respondent.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This 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.

         Background [1]

         In 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.[2] 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).

         Thompson 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 claims”)[3];
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)) (“instruction claims”).

         Judge 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)

         On 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.[4] See Thompson v. Mo. Bd. of Probation and Parole, 39 F.3d 186 (8th Cir. 1994), cert. denied, 514 U.S. 1113 (1995).

         On June 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.

         Standard of review

         A 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 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).

         A Rule 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. at 530-32.

         The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244, imposes three ...


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