United States District Court, N.D. Oklahoma
OPINION AND ORDER
Y K FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
a 28 U.S.C. § 2254 habeas corpus action. The record
reflects that, on April 22, 2016, the Court granted
Respondent's motion to dismiss and dismissed the amended
petition for writ of habeas corpus with prejudice as time
barred. See Dkt. # 27. The Court entered judgment
(Dkt. # 28) in favor of Respondent on April 22, 2016.
Petitioner did not file a notice of appeal and the time for
filing a notice of appeal has expired. See Fed. R.
App. P. 4(a)(1)(A).
21, 2016, almost three (3) months after entry of judgment,
Petitioner filed a document titled “motion to dismiss
brief for a time bar and motion” (Dkt. # 29), asking
the Court to “dismiss the time bar motion.” By
Order filed August 1, 2016 (Dkt. # 31), the Court adjudicated
the motion as a “true” Rule 60(b) motion to set
aside judgment and denied the requested relief. Petitioner
did not file a notice of appeal and the time for filing a
notice of appeal has expired. See Fed. R. App. P.
December 5, 2016, or more than four (4) months after entry of
the order denying relief under Fed.R.Civ.P. 60(b), Petitioner
filed a document titled “amended appeal to habeas
corpus” (Dkt. # 32). In that document, Petitioner
states that he is “amending this habeas corpus appeal,
” id. at 1, and again makes allegations
supporting his claim that he is innocent of the crimes of
which he was convicted. The Court finds that, even though the
habeas petition was dismissed with prejudice as time barred
more than seven (7) months before Petitioner filed the
“amended appeal to habeas corpus, ” Petitioner
improperly attempts to amend his petition and continues to
seek relief from his convictions entered in Tulsa County
District Court, Case No. CF-1999-4676. Petitioner does
not state an intent to appeal this Court's rulings to the
Tenth Circuit Court of Appeals. Therefore, the Court shall
adjudicate the “amended appeal to habeas corpus”
as a second motion for relief from judgment under
request for relief under Fed.R.Civ.P. 60(b) is denied.
Petitioner makes no argument suggesting that Grounds (1)
through (5) of Rule 60(b) apply in this case. As a result,
the only available ground for relief is under Rule 60(b)(6).
As the Court has previously explained, see Dkt. #
31, Rule 60(b)(6) “is a catchall provision, allowing
relief from judgment for ‘any other reason justifying
relief.'” Davis v. Kan. Dep't of
Corrs., 507 F.3d 1246, 1248 (10th Cir. 2007) (quoting
Fed.R.Civ.P. 60(b)(6)). “Relief under Rule 60(b)(6) is
extraordinary and may only be granted in exceptional
circumstances.” Id. (internal quotation marks
and citation omitted). Relief under Rule 60(b)(6) “will
rarely occur in the habeas context.” Omar-Muhammad
v. Williams, 484 F.3d 1262, 1264 (10th Cir. 2007)
(quoting Gonzalez v. Crosby, 545 U.S. 524, 535
asserted in Petitioner's “amended appeal to habeas
corpus” rises to the level of “exceptional
circumstances.” Petitioner alleges, as he did in his
amended petition (Dkt. # 10), in his response to the motion
to dismiss (Dkt. # 26), and in his “motion to dismiss
brief for a time bar” (Dkt. # 29), that he is actually
innocent of the crimes of which he was convicted.
See Dkt. # 32. Specifically, Petitioner claims that
because the rape victim was capable of providing “legal
consent, ” “[t]here was no rape by mental
incapacity” and his case should be reversed and the
charges dismissed. Id. at 1-2. However, as explained
in the Opinion and Order dismissing the amended petition for
writ of habeas corpus (Dkt. # 27), and in the Order denying
relief under Fed.R.Civ.P. 60(b) (Dkt. # 31), a petitioner
must “support his allegations of innocence with new
reliable evidence - whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence - that was not presented at trial.”
In those prior rulings, the Court determined that Petitioner
had failed to present new evidence to support his actual
innocence claim and that, instead, Petitioner merely
challenged the sufficiency of the evidence presented at
trial. See Dkt. # 27 at 6-7; Dkt. # 31 at 3. The
Court found those arguments to be insufficient to overcome
the statute of limitations bar.
“amended appeal to habeas corpus, ” Petitioner
again fails to make the necessary showing. While Petitioner
believes he was wrongly convicted, he provides no new
evidence to support his claim of actual innocence.
Petitioner's claim is properly characterized as one of
legal innocence, as opposed to actual innocence. Therefore,
Petitioner cannot take advantage of the “actual
innocence” gateway to overcome the time bar. The Court
finds no basis for reconsidering its prior ruling denying
relief under Fed.R.Civ.P. 60(b). Therefore, to the extent
Petitioner again seeks relief under Fed.R.Civ.P. 60(b), the
request is denied.
movant is required to obtain a certificate of appealability
to appeal from the denial of a Rule 60(b) motion.
Spitznas, 464 F.3d at 1218. Pursuant to 28 U.S.C.
§ 2253, the court may issue a certificate of
appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right,
” and the court “indicates which specific issue
or issues satisfy [that] showing.” A movant can satisfy
that standard by demonstrating that the issues raised are
debatable among jurists, that a court could resolve the
issues differently, or that the questions deserve further
proceedings. Slack v. McDaniel 529 U.S. 473 (2000)
(citing Barefoot v. Estelle, 463 U.S. 880, 893
(1983)). In addition, when the Court's ruling is based on
procedural grounds, a movant must demonstrate that
“jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484. In
this case, the Court concludes that a certificate of
appealability should not issue. Nothing suggests that the
Court's procedural ruling resulting in the denial of
Petitioner's Rule 60(b) motion is debatable or incorrect.
The Court denies a certificate of appealability.
IT IS HEREBY ORDERED that:
Petitioner's “amended appeal to habeas
corpus” (Dkt. # 32), adjudicated as Petitioner's
second Rule 60(b) motion for relief from judgment, is denied.
certificate of appealability is denied.