United States District Court, N.D. Oklahoma
DALE H. HYLOK, Petitioner,
JANET DOWLING, Warden,  Respondent.
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE.
before the Court is petitioner Dale Hylok's motion for
relief from final judgment under Fed.R.Civ.P. 60(b) (Dkt. #
He asks the Court to vacate the order dismissing his 28
U.S.C. § 2254 habeas petition. Id.
September 2, 1986, petitioner pled guilty to first degree
murder in Rogers County District Court, Case No. CRF-85-231.
He was sentenced to life imprisonment. Petitioner filed his
first 28 U.S.C. § 2254 habeas petition in 1996 (Dkt. # 1
in Case No. 96-C-43-B). By an Order filed January 27, 1997,
the petition was dismissed without prejudice for failure to
exhaust state remedies. Id. Petitioner appealed the
decision, lost, and eventually returned to state court to
seek post-conviction relief. See Dkt. # 1 at 3-4 .
filed his second § 2254 petition in 1999 (Dkt. # 1). By
an Order and Judgment filed October 3, 2000 (Dkt. # 12, 13),
the Court (Hon. Sven Erik Holmes, retired) dismissed the
petition as time barred. There was no activity in the case
until 2013, when petitioner sought relief under Fed.R.Civ.P.
60(b). See Dkt. 15. He argued the one-year
limitation period does not apply based on actual innocence.
Id. at 3-4. Petitioner also reasserted the merits of
his habeas claims. Id. at 5-18. By an Order filed
December 16, 2013, the Court denied relief under Rule 60(b)
and dismissed the habeas claims as second or successive.
September 14, 2017, petitioner filed the instant motion under
Rule 60(b)(6) (Dkt. # 19).
60(b) relief is available in § 2254 proceedings, but it
“cannot be used to circumvent restraints on successive
habeas petitions.” See Lopez v. Douglas, 141
F.3d 974, 975 (10th Cir. 1998). When a Rule 60(b) motion
follows a habeas ruling, courts scrutinize whether the
requested relief is tantamount to a second or successive
petition. See United States v. Nelson, 465 F.3d
1145, 1147 (10th Cir. 2006) (“It is the relief sought,
not his pleading's title, that determines whether the
pleading is a” successive habeas petition). A motion is
successive “if it in substance or effect asserts or
reasserts a federal basis for relief from the
petitioner's underlying conviction.” Spitznas
v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006).
“Conversely, it is a ‘true' 60(b) motion if
it either (1) challenges only a procedural ruling of the
habeas court which precluded a merits determination of the
habeas application, . . . or (2) challenges a defect in the
integrity of the federal habeas proceeding, provided that
such a challenge does not itself lead inextricably to a
merits-based attack on the disposition of a prior habeas
petition.” Id. at 1215-16.
motion contains a mixture of Rule 60(b) allegations and
successive habeas claims. He contends that his second §
2254 petition should not have been dismissed as untimely
because: (1) he was unrepresented; (2) his first, unexhausted
§ 2254 petition was filed within the one-year limitation
period; and (3) he paid a $750 fine in state court to
complete the exhaustion process before returning to federal
court. See Dkt. # 19 at 15. Petitioner also
reasserts his federal habeas claims. He argues that his trial
counsel harbored a secret grudge against him; the state court
wrongfully denied post-conviction relief; and he was denied a
direct appeal through no fault of his own. Id. at
5-12. Consistent with Spitznas, the merits of the
Rule 60(b) allegations must be considered separately from the
successive habeas claims. See 464 F.3d at 1217.
Rule 60(b), the Court finds that petitioner is not entitled
to relief from the judgment. Rule 60(b)(6) relief is
“extraordinary, ” “difficult to attain,
” and only “appropriate . . . when it offends
justice to deny such relief.” Zurich North America
v. Matrix Serv., Inc., 426 F.3d 1281, 1289, 1293 (10th
Cir. 2005). Petitioner's lack of counsel does not satisfy
this standard, as there is no constitutional right to counsel
in post-conviction proceedings. See Coronado v.
Ward, 517 F.3d 1212, 1218 (10th Cir. 2008). It is also
well established that a timely, unexhausted habeas petition
does not immunize a later, untimely filing from dismissal.
See Duncan v. Walker, 533 U.S. 167, 172 (2001)
(addressing exhaustion and noting “a . . . federal
habeas petition does not toll the limitation period”).
Finally, the fact that petitioner accrued a fine in state
court has no impact on his entitlement to relief in a federal
habeas proceeding. Consequently, Petitioner's request for
Rule 60(b) relief must be denied.
remaining arguments attack the underlying conviction and
therefore constitute successive habeas claims. The
“district court does not have jurisdiction to address
the merits of a second or successive [habeas] . . . claim
until [the Tenth Circuit] has granted the required
authorization” to proceed. In re Cline, 531
F.3d 1249, 1251 (10th Cir. 2008). See also 28 U.S.C.
§ 2244(b) (requiring a second or successive § 2254
petition to be certified by the appropriate court of
appeals). When the motion is filed without authorization, the
district court has discretion to either transfer the matter
to the Tenth Circuit, in the interests of justice, or dismiss
the motion for lack of jurisdiction. Cline, 531 F.3d
at 1252. Factors to consider in evaluating a transfer
include: “whether the claims would be time barred if
filed anew in the proper forum, whether the claims . . . are
likely to have merit, and whether the claims were filed in
good faith or if, on the other hand, it was clear . . . that
the court lacked the requisite jurisdiction.”
Id. at 1251.
reviewed petitioner's successive habeas claims, the Court
declines to transfer the matter. The motion was filed in
2017, nearly ten years after the conviction became final.
See Dkt. # 19; see also Dkt. # 12 at 5.
Further, the order denying petitioner's last Rule 60(b)
motion clearly placed him on notice that the Court lacks
jurisdiction over his successive habeas claims. See
Dkt. 16 at 4-5. Therefore, petitioner's successive habeas
claims shall be dismissed without prejudice for lack of
Corpus Rule 11 requires “[t]he district court [to] . .
. issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” A certificate
may only issue “if the applicant has made a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could
disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell. 537
U.S. 322. 327 (2003). For the reasons discussed above,
reasonable jurists would ...