United States District Court, D. Utah
MEMORANDUM DECISION & ORDER DENYING POST-JUDGMENT
SAM SENIOR JUDGE
post-judgment motions by Petitioner are before the Court.
November 21, 2018, this Court granted Respondent's motion
to dismiss this habeas-corpus petition. (Doc. No. 59.)
Petitioner's original habeas petition brought the
following claims under 28 U.S.C.S. § 2254 (2019):
prosecutorial misconduct and ineffective assistance of
counsel. Reasoning that all Petitioner's challenges were
procedurally defaulted and did not qualify for exceptional
treatment, the Court rejected Petitioner's claims of
actual innocence based on newly discovered evidence.
asserts fraud in moving for relief from the final order and
judgment. Fed.R.Civ.P. 60(b)93). In support of his motion,
Petitioner cites sixteen allegedly false statements of fact
or law made by Respondent in its Motion to Dismiss.
relevant part, Rule 60(b) reads: “On motion and just
terms, the court may relieve a party . . . from a final
judgment, order, or proceeding for the following reasons: (3)
fraud . . ., misrepresentation, or misconduct by an opposing
party . . . .” Fed.R.Civ.P. 60(b).This rule interplays
with the federal habeas statute about second or successive
habeas petitions. The applicable statutory language states:
A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a
prior application shall be dismissed unless-- . . . (i) the
factual predicate for the claim could not have been
discovered previously through the exercise of due diligence;
and (ii) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C.S. § 2244(b)(1)(B) (2019).
on Tenth Circuit law, this Court must first determine
“whether the motion is a true Rule 60(b) motion or a
second or successive petition.” Spitznas v.
Boone, 464 F.3d 1213, 1217 (10th Cir. 2006);
Gonzalez v. Crosby, 545 U.S. 524, 538 (2005)
(clarifying not all 60(b) motions in federal habeas cases are
second or successive petitions). This Court has jurisdiction
to rule on true Rule 60(b) arguments. However, “second
or successive” issues must be “certified by a
panel of the [10th Circuit] pursuant to § 2244 before
[they] may proceed in district court.” Id. at
1215 (citing 28 U.S.C.S. § 2244 (2019)).
explains that “a 60(b) motion is a second or successive
petition if it in substance or effect asserts or reasserts a
federal basis for relief from the petitioner's underlying
conviction.” Spitznas, 464 F.3d at 1215
(citing Gonzalez, 545 U.S. at 538).
Gonzalez also states that while a 60(b) motion
alleging fraud may constitute a true 60(b) motion,
such a determination requires a more nuanced analysis.
Id. at 1216. Such motions are only true 60(b)
motions if the alleged misconduct relates solely to
fraud perpetrated on the federal habeas court; if the fraud
alleged includes (or implies) related fraud on the state
court then it is not a true 60(b) motion, but rather a second
or successive petition upon which this court cannot rule.
OR SUCCESSIVE ANALYSIS
Tenth Circuit also made clear in Spitznas that
“spurious attempts to re-cast substantive arguments in
the guise of ‘fraud on the court' . . . will
properly be treated as an attempt to allege or re-allege
substantive grounds for habeas relief, thus presenting a
second or successive petition.” Id. n.4. This
well encompasses what Petitioner tries to do in his petition.
Petitioner's allegations are far afield from Rule
60(b)'s standard; it is clear that his motion merely
restates his same substantive arguments under the guise of
his fraud allegations. Thus, as laid out in
Spitznas, Petitioner's motion is a second or
successive petition over which this court does not have
jurisdiction. See 28 U.S.C.S. § 2244(a) (2019).
may not file such a petition without authorization from the
appropriate federal court of appeals. Id. §
2244(b)(3)(A) (“Before a second or successive
application permitted by this section 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 R.9, Rs.
Governing § 2254 Cases in the U.S. Dist. Cts.; In re
Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (citing
United States v. Nelson, 465 F.3d 1145, 1148 (10th
Cir. 2006)) (“A district court does not have
jurisdiction to address the merits of a second or successive
. . . § 2254 claim until [the Tenth Circuit] has granted
the required authorization.”). Petitioner did not