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 Pursuant to Rule 60(d)(3), Fraud on the Court
and/or A Lack of Subject Matter Jurisdiction on Retrial
Charge (Doc. No. 69) and Motion to Expedite (Doc. No. 74).
No. response was filed and the time to do so has passed. For
the following reasons, the motion will be dismissed.
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. On January 31, 1994, the district court
denied Thompson's petition. On appeal, the Eighth Circuit
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 the case under Rule
60(b)(6). The Court determined that Thompson's motion was
improper because it sought to assert or reassert a federal
basis for relief from his conviction and therefore denied and
dismissed his motion for lack of jurisdiction as a second or
successive habeas petition. (Doc. No. 57). The Court further
found that even if Thompson's motion was construed under
Rule 60(b)(6) and not as a successive § 2254 petition,
he would still not be entitled to relief for two reasons.
First, Thompson failed to set forth an “extraordinary
circumstance” warranting relief under Rule 60(b)(6).
Second, his motion, filed more than twenty-three years after
the Court denied his § 2254 petition and the Eighth
Circuit affirmed that ruling, was untimely. On April 10,
2018, the Court denied Thompson's motion for
reconsideration. (Doc. No. 60). Thompson was denied a
certificate of appealability both by this Court, Thompson
v. Mo. Bd. of Probation and Parole, No. 4:92-CV-888 JAR
(E.D. Mo.), and by the Eighth Circuit Court of Appeals,
Thompson v. United States, No. 18-1898 (8th Cir.).
now seeks to attack the validity of his sentence under Rule
60(d)(3). He asserts that the State of Missouri perpetrated a
fraud on the court when, during his retrial for the death of
police officer Herbert Goss in 1984, it instructed the jury
on the elements of first degree murder under newly enacted
section 565.020 R.S. Mo. (1984), rather than section 559.010
R.S. Mo. (1959), the statute under which he was originally
charged in 1961. Because the provisions of Chapter 565 only
govern offenses committed after July 1, 1984, section
565.001.1, 2, R.S. Mo., Thompson moves to reopen his case and
vacate his conviction for lack of subject matter
60(d)(3) grants the Court power to “set aside a
judgment for fraud on the Court.” Under this rule,
fraud is narrowly defined as “fraud directed to the
judicial machinery itself, ” and is not fraud between
the parties or fraudulent documents, false statements, or
perjury. See Superior Seafoods, Inc. v. Tyson Foods,
Inc., 620 F.3d 873, 878 (8th Cir. 2010). Only the most
egregious misconduct, such as bribery of a judge or jury or
fabrication of evidence by counsel, will constitute a fraud
on the court. Landscape Props., Inc. v. Vogel, 46
F.3d 1416, 1422 (8th Cir. 1995); Johnson v. United
States, No. 4:07CV00365 ERW, 2011 WL 940841, at *1 (E.D.
Mo. Mar. 16, 2011).
prevail on a motion under Rule 60(d)(3), the burden is on the
moving party to establish fraud by clear and convincing
evidence. Johnson, 2011 WL 940841, at *2. This
rigorous standard requires proof of “intent to deceive
or defraud the court” through a “deliberate
scheme.” Id. “Intent to defraud is an
absolute prerequisite to a finding of fraud on the
court.” Robinson v. Audi Aktiengesellschaft,
56 F.3d 1259, 1267 (10th Cir. 1995). Further, the movant must
“show an unconscionable plan or scheme which is
designed to improperly influence the court in its
decision.” Johnson, 2011 WL 940841, at *1
(citing England v. Doyle, 281 F.2d 304, 309 (9th
Cir. 1960)). “Conclusory averments of the existence of
fraud made on information and belief and unaccompanied by a
statement of clear and convincing probative facts which
support such belief do not serve to raise the issue of the
existence of fraud.” Booker v. Dugger, 825
F.2d 281, 283-84 (11th Cir. 1987). Here, Thompson has not
alleged anything that would constitute fraud on the Court in
accordance with Rule 60(d)(3). Rather, the claim asserted in
his motion, i.e., that the wrong law was applied, is one of
legal error that could have been raised on appeal. As such,
the claim is defaulted. See In re Design Classics,
Inc., 788 F.2d 1384, 1386 (8th Cir. 1986) (When an error
of law is alleged, the proper vehicle for attack on that
error is the direct appeal.)
event, Thompson is attempting to relitigate an issue he could
have raised on direct appeal. A post-dismissal motion under
Rule 60(d) that either attempts to raise a new ground for
relief or attacks a federal court's previous resolution
of a claim on the merits is a second or successive claim for
habeas relief, for which the movant must obtain permission
from the court of appeals prior to filing in the district
court. Williams v. Dormire, No. 4:10-CV-1413 CAS,
2010 WL 3270111, at *3 (E.D. Mo. Aug. 17, 2010) (citing
Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005)).
a defendant may file a second or successive § 2254
motion, he must obtain leave from the appropriate court of
appeals. 28 U.S.C. § 2244(b)(3)(A). To circumvent this
requirement, defendants sometimes file a successive motion
under the guise of a motion for relief from judgment under
Rule 60 of the Federal Rules of Civil Procedure. Boyd v.
United States, 304 F.3d 813, 814 (8th Cir. 2002).
Numerous courts have held that a post-dismissal motion under
Rule 60(d)(3) is a second or successive claim for relief, for
which the movant must obtain permission from the court of
appeals before filing in the district court. See Bewig v.
United States, No. 4:05 CV 635 CDP, 2010 WL 4177452, at
*2 (E.D. Mo. Oct. 20, 2010) (denying a Rule 60(d)(3) motion
as a successive § 2255 motion and holding the defendant
was simply trying to re-litigate issues he raised or could
have raised on direct appeal and in his initial § 2255
motion); see also Williams v. Dormire, No.
4:10-cv-1660, 2010 WL 3733862, at *3 (E.D. Mo. Sept. 20,
2010); Blackwell v. United States, No. 4:99-cv-1687,
2009 WL 3334895, at *7 (E.D. Mo. Oct. 14, 2009);
Gutierrez v. United States, No. 01-331 ADM/AJB, 2013
WL 3380313, at *2 (D. Minn. July 8, 2013); United States
v. Head, No. 02-75(1), 2010 WL 2545857 (D. Minn. June
Eighth Circuit Court of Appeals has not authorized this Court
to consider Thompson's second or successive habeas
petition. Instead, Thompson is attempting to circumvent the
requirements of § 2244(b)(3)(A) through another
procedural device, Rule 60(d). As a result, this Court is not
authorized to consider Thompson's motion. Ward v.
Norris, 577 F.3d 925, 933 (8th Cir. 2009).
IT IS HEREBY ORDERED that Petitioner's
Motion for Relief Pursuant to Rule 60(d)(3), Fraud on the
Court and/or A Lack of Subject Matter Jurisdiction on Retrial
Charge  is DENIED to the extent the
motion is treated as a Rule 60(d)(3) motion, and
DISMISSED for lack of jurisdiction as a
second or successive habeas petition in all other respects.
IS FURTHER ORDERED that Petitioner's Motion to