United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
A. KIMBALL, UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendant Fred Clifton's
motion for relief from a judgment pursuant to Rule 60(b)(1)
of the Federal Rules of Civil Procedure. Defendant's Rule
60(b) motion comes after an unsuccessful attempt to attack
his sentence under 28 U.S.C. § 2255 in Civil No.
2:17cv1153DAK. This court denied the § 2255 petition on
the merits, denied a Certificate of Appealability, and the
Tenth Circuit subsequently denied a Certificate of
Appealability. Defendant filed this Rule 60(b) motion in his
original criminal case, not his § 2255 civil action.
However, the court notes that while Defendant listed only his
criminal case number, Defendant styled himself as a
petitioner and the United States as a respondent as if he was
filing the motion in his § 2255 action. A rule of civil
procedure could be applicable in Defendant's § 2255
civil action whereas it is not applicable in his criminal
case. Therefore, the court finds it unclear whether Defendant
intended to file the motion in his criminal or civil case. To
the extent that the motion was filed in Defendant's
criminal case, the motion is denied because rules of civil
procedure do not apply in criminal cases. To the extent, that
Defendant intended to file the motion in his § 2255
civil action, the court will analyze the motion more fully.
Rule 60(b)(1), “the court may relieve a party or its
legal representative from a final judgment, order, or
proceeding” based on “(1) mistake, inadvertence,
surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(4).
Relief under Rule 60(b) is extraordinary and may only be
granted in exceptional circumstances.” Yapp v.
Excel Corp., 186 F.3d 1222, 1231 (10th Cir.
1999). “A plaintiff must overcome a higher hurdle to
obtain relief from a post-judgment motion than on direct
appeal from a judgment.” LeFleur v. Teen Help,
342 F.3d 1145, 1153 (10th Cir. 2003).
Spitznas v. Boone, 464 F.3d 1213 (10th
Cir. 2006), the Tenth Circuit outlined “steps to be
followed by district courts in this circuit when they are
presented with a Rule 60(b) motion in a habeas or § 2255
case.” Id. at 1216. “The district court
should first determine . . . whether the motion is a true
Rule 60(b) motion or a second or successive petition.”
Id. “If the district court concludes that the
motion is a true Rule 60(b) motion, its should rule on it as
it would any other Rule 60(b) motion.” Id. at
1217. “If, however, the district court concludes that
the motion is actually a second or successive petition, it
should refer the matter to this court for authorization under
§ 2244(b)(3).” Id. (citing 28 U.S.C.
§ 1631 authorizing transfer of civil actions filed
without jurisdiction in the interest of justice “to any
other court in which the action could have been brought at
the time it was filed or noticed.”) “In the case
of a ‘mixed' motion-that is, a motion containing
both true Rule 60(b) allegations and second or successive
habeas claims-the district court should (1) address the
merits of the true Rule 60(b) allegations as it would the
allegations in any other Rule 60(b) motion, and (2) forward
the second or successive claims to this court for
determining whether Petitioner's motion is a true Rule
60(b) motion, “[i]t is the relief sought not his
pleading's title, that determines whether the pleading is
a § 2255 motion.” United States v.
Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006).
In United States v. Nelson, 465 F.3d 1145
(10th Cir. 2006), the court explained that
“whether a postjudgment pleading should be construed as
a successive application depends on whether the pleading (1)
seeks relief from the conviction or sentence or (2) seeks to
correct an error in the previously conducted habeas
proceeding itself.” Id. “A pleading
asserting a ‘new ground for relief' from the
[criminal] judgment is advancing a new claim and is therefore
treated as a successive . . . application.”
Id. “On the other hand, if the pleading only
‘attacks, not the substance of the federal court's
resolution of a claim on the merits, but some defect in the
integrity of the federal habeas proceedings,' then it is
not advancing a new claim and should not be characterized as
a successive petition.” Id.
this court must determine whether each of Defendant's
four grounds for relief qualifies as a Rule 60(b) motion or a
successive § 2255 motion. Defendant asserts (1) a
warrantless in-home arrest, (2) unlawful pretrial detention,
(3) fraud on the court relating to the date of his arrest and
arraignment, and (4) ineffective assistance of counsel for
failure to litigate a Fourth Amendment issue. These requests
for relief are substantive attacks on Defendant's
criminal judgment, not assertions of defects in his §
2255 proceeding. Therefore, Defendant's motion is
properly characterized as a successive § 2255 motion.
Under the terms of § 2255, a second or successive §
2255 motion is not permitted to be filed in the district
court absent authorization from the court of appeals. Section
2255 provides in relevant part:
A second or successive motion must be certified as provided
in section 2244 by a panel of the appropriate court of
appeals to contain -
(1) newly discovered evidence that . . . would be sufficient
to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of
the offense; or
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255. Under Section 2244, any claim
presented in a second petition that was presented in the
prior petition shall be dismissed. 28 U.S.C. §
2244(b)(1). Any claim not presented in the prior application
shall be dismissed unless the petitioner shows that (1) the
claim relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, (2) the factual predicate for the claim could not have
been discovered previously through the exercise of due
diligence and such facts would establish by clear and
convincing evidence and that no reasonable factfinder would
have found the petitioner guilty of the underlying offense.
Id. at § 2244(b)(2).
turn, 28 U.S.C. § 2244(b)(3)(A) mandates that
“[b]efore a second or successive application . . . is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.” See
also Rules Governing Section 2254 Cases in the United
States District Courts, Rule 9; Coleman v. Unites
States, 106 F.3d 339, 341 (10th Cir. 1997).
Tenth Circuit has held that “when a second or
successive petition for habeas corpus relief under §
2254 . . . is filed in the district court without the
required authorization by this court, the district court
should transfer the petition or motion to this court in the
interest of justice pursuant to [28 U.S.C.] §
1631.” Coleman, 106 F.3d at 341. The court may
also dismiss the petition for lack of jurisdiction. In re
Cline, 531 F.3d 1249, 1252 (10th Cir. 2008).
district court must consider several factors in determining
whether a transfer under 28 U.S.C. § 1631 is in the
interest of justice. These factors include “whether the
claims would be time barred if filed anew in the proper
forum, whether the claims alleged are likely to have merit,
and whether the claims were filed in good faith or if, on the
other hand, it was clear at the time of filing that the court
lacked the requisite jurisdiction.” Id. at
1251. The court must also consider that the court of appeals
will not authorize the filing of a second petition unless the
petitioner can meet the requirements of Section 2244(b)(2)
case, the court concludes that Defendant's § 2255
issues are without merit and cannot meet the standards of
Section 2244(b)(2). The claims are time barred and do not
rely on any new law or facts that could not have been
included in Defendant's first § 2255 motion.
Therefore, it is not in the interest of justice to ...