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Webb v. Allbaugh

United States District Court, E.D. Oklahoma

April 12, 2018

CHRISTOPHER W. WEBB, Petitioner,
v.
JOE ALLBAUGH, Director, Department of Corrections, Respondent.

          OPINION AND ORDER

          JAMES H. PAYNE, UNITED STATES DISTRICT JUDGE.

         Petitioner's petition for a writ of habeas corpus was denied on April 15, 2016 (Dkt. 18), and the Tenth Circuit Court of Appeals dismissed his untimely notice of appeal on September 7, 2016 (Dkt. 29). He subsequently filed a motion pursuant to Fed.R.Civ.P. 60(b), complaining of “the defects/shortcomings in the integrity of the Federal Habeas Proceedings that have further prevented/precluded (a) (Final determination on the merits of petitioner's claims) which have led to multiple erroneous procedural rulings.” (Dkt. 30 at 1). Petitioner is arguing that this Court has failed to properly consider his claim of the sufficiency of the evidence to convict him of Conspiracy to Commit a Felony. Id.

         Fed. R. Civ. P. Rule 60(b) allows relief from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

         “Rule 60(b) relief ‘is extraordinary and may only be granted in exceptional circumstances.'” Zurich North America v. Matrix Service, Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (quoting Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000)). Furthermore, “[i]n a Rule 60(b) proceeding the motion is addressed to the sound discretion of the [district] court.” Caribou Four Corners v. Truck Ins. Exchange, 443 F.2d 796, 799 (10th Cir. 1971) (citations omitted).

         Petitioner alleges this Court failed to address whether all the elements necessary to constitute the crime of Conspiracy to Pass Two or More Bogus Checks were proven beyond a reasonable doubt. In particular, he argues the sixth and seventh elements of the underlying crime of Passing Two or More Bogus Checks in Excess of $500 were not considered. (Dkt. 30 at 2).[1]

         The record shows Petitioner raised a claim of insufficient evidence in his habeas petition. His argument was that the accomplice testimony was insufficient and uncorroborated, and that even if the evidence had been corroborated, it was insufficient to establish a conspiracy to commit a felony. (Dkt. 1 at 8-9). The petition, however, failed to expressly challenge the sufficiency of the evidence with respect to the underlying crime of Passing Two or More Bogus Checks in Excess of $500. Instead, he raised this issue in his “Motion to Add the Supplemental Information Re: Ground 2 Insufficient Evidence, ” alleging he lacked the requisite knowledge that there were insufficient funds when the bogus checks were written. (Dkt. 1 at 35-36). The Court did not address this specific claim concerning the elements of Petitioner's underlying crime.

         A review of the record shows that Petitioner failed to raise this particular issue on direct appeal. (Dkt. 14-2 at 16-19). Instead, as in his habeas ...


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