United States District Court, E.D. Missouri, Eastern Division
LARRY B. DIETZ, Petitioner,
TERRY RUSSELL, Respondent.
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
closed matter is before the Court on Petitioner's pro
se Notice of Motion Pursuant to Rule 60(b) (Doc. 16),
and Motion for Relief from Judgment Pursuant to Rule 60(b).
(Doc. 17). On March 2, 2015, Petitioner filed a Petition for
Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254.
(Doc. 1). Dietz's habeas petition presented four claims,
two of which asserted trial court error in connection with
the Interstate Agreement on Detainers (“IAD”), and two
of which asserted that he received ineffective assistance of
counsel. (Doc. 1). The Court denied relief and dismissed the
petition on January 5, 2018. See Dietz v. Russell,
No. 4:15-CV-0392-SPM, 2018 WL 306020 (E.D. Mo. Jan. 5, 2018).
On February 26, 2018, Petitioner filed the motion presently
at bar, in which he moves the Court to vacate the previous
judgment entered in this action and to grant a
“judgment of acquittal with his case being dismissed
with prejudice, ” pursuant to Fed.R.Civ.P. 60(b).
Respondent has not filed a response in opposition and the
time to do so has expired. For the following reasons,
Petitioner's motion will be denied.
Standard of Review
Eighth Circuit had held that when a petitioner files a Rule
60(b) motion in a closed habeas proceeding, the district
court should file the purported Rule 60(b) motion and 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 28 U.S.C. § 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, the district court should dismiss
it for failure to obtain authorization from the Court of
Appeals or, in its discretion, may transfer the purported
Rule 60(b) motion to the Court of Appeals.”
Boyd, 304 F.3d at 814.
Rule of Civil Procedure 60(b) allows a habeas petitioner to
seek relief from final judgment and to request the reopening
of his case in certain circumstances. Rule 60(b) applies to
habeas proceedings to the extent it is not inconsistent with
AEDPA.” Ward v. Norris, 577 F.3d 925, 932 (8th
Cir. 2009); see also Fed. R. Civ. P. 81(a)(4) (rules
of civil procedure apply to proceedings for habeas corpus to
the extent that the practice in those proceedings is not
specified in a federal statute or the Rules Governing Section
2254 cases). AEDPA imposes three requirements on second and
successive habeas petitions:
First, any claim that has already been in a previous petition
must be dismissed. § 2244(b). Second, any claim that has
not already been adjudicated must be dismissed
unless it relies on either a new and retroactive rule of
constitutional law or new facts showing a high probability of
actual innocence. § 2244(b)(2). Third, before the
district court may accept a successive petition for filing,
the court of appeals must determine that it presents a claim
not previously raised that is sufficient to meet §
2244(b)(2)'s new rule or sufficient to meet §
Gonzalez v. Crosby, 545 U.S. 524, 529-530 (2005)
(emphasis in original). “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 or § 2255 action by purporting to invoke
some other procedure.” U.S. v. Lambros, 404
F.3d 1034, 1036 (8th Cir. 2005).
the Court must determine whether Dietz's Rule 60(b)
motion is in fact a motion for relief from judgment, or an
impermissible second or successive petition for habeas corpus
relief. See Gonzalez, 545 U.S. at 530 (Court must
first determine if the Rule 60(b) motion filed by a habeas
petitioner is a habeas corpus application as that statute
uses the term). “If neither the motion itself nor the
federal judgment from which it seeks relief substantively
addresses federal grounds for setting aside the movant's
state conviction, allowing the motion to proceed as
denominated creates no inconsistency with the habeas statute
or rules.” Gonzalez, 545 U.S. at 533.
Rule 60(b) motion is a second or successive habeas corpus
application if it contains a claim.” Ward, 577
F.3d at 933. “For the purposes 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 an attack on
the federal court's previous resolution of the claim on
the merits.” Ward, 577 F.3d at 933.
“When a Rule 60(b) motion presents a claim, it must be
treated as a second or successive petition under
AEDPA.” Id. “No claim is presented if
the motion attacks some defect in the integrity of the
federal habeas proceedings.” Id.
“Likewise, a motion does not attack a federal
court's determination on the merits 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
Rule 60(b)(1) motion, Petitioner does not make any argument
as to why Rule 60 is an appropriate vehicle to provide relief
from the final judgment of this Court. Rather, he simply
reiterates his claims concerning the IAD that comprised
counts one and two of his original habeas petition. Thus, it
appears that Petitioner's Rule 60(b) motion ultimately
seeks to assert a claim, and this claim was raised in his
original application for a writ of habeas corpus.
careful review of the Court's previous decision on
Petitioner's habeas petition and the present Rule
60(b)(1) motion, the Court determines that Petitioner's
Rule 60(b) motion is improper, because it seeks to re-argue
claims that were previously presented in the habeas petition
and dismissed. He is simply presenting once more his claim
that the trial court violated the requirements of the IAD.
Because Petitioner presented this same claim in his first
habeas proceeding, 28 U.S.C. 2244(b)(1) precludes him from
asserting the claim again in a second or successive habeas
petition, and Petitioner has not satisfied the three
requirements AEDPA imposes on successive habeas petitions.
See Wainwright v. Norris, 121 F.3d 339, 340 (8th
Cir. 1997) (denying motion were petitioner sought to file
second habeas petition asserting claim presented in initial
habeas petition); 28 U.S.C. § 2244(a)-(b)(3)(C).
Therefore, the Court will deny and dismiss Petitioner's
motion as a second or successive habeas petition.
even if the Court did not find that Dietz's claim was a
second or successive petition, his Rule 60(b) motion fails.
Dietz requests that the Court vacate the original judgment
under Rule 60(b)(4), which states that the Court may relieve
a party from a final judgment if the judgment is void. A
judgment is void if the Court lacked jurisdiction or acted in
a manner inconsistent with due process such that the party
was deprived of notice or the opportunity to be heard.
See Baldwin v. Credit Based Asset Servicing &
Securitization, 516 F.3d 734, 737 (8th Cirt. 2008).
“A judgment is not void . . . simply because it is or
may have been erroneous.” United Student Aid
Funds, 130 S.Ct. 1367, 1377 (2010). Nor is a motion
under Rule 60(b)(4) a substitute for a timely appeal.
Kocher v. Dow Chem. Co., 132 F.3d 1225, 1229 (8th
Petitioner makes no argument that this Court lacked
jurisdiction over his habeas corpus action or acted in
a manner inconsistent with his right to due process. Instead,
petitioner simply reiterates his argument related to the IAD
violation alleged in his original habeas petition. Construing
his motion liberally, the Court presumes that by asking the
Court to declare the judgment void, he is arguing that the
Court misapplied the law when denying relief under his first
habeas petition. Such an argument does not challenge the
jurisdiction of the Court. See, e.g., United States v.
Three Hundred Fifty-Three Thousand Six Hundred Thirty
Dollars, in U.S. Currency, 463 F.3d 812, 813-14 (8th
Cir. 2006) (argument challenging legality of the substantive
action is not a challenge to jurisdiction). Nor does a review
of the record show any action taken in this cause to have
been inconsistent with Petitioner's right to due process.