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Lynch v. Nelson

United States District Court, D. Utah

April 3, 2019

SHANE NELSON, Respondent.



         Several post-judgment motions by Petitioner are before the Court.


         On 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.

         RULE 60(b) MOTION

         Petitioner 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.

         In 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).

         Based 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)).

         Gonzalez 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. Id.


         The 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).

         Petitioner 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 obtain ...

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