United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. Senior District Judge
matter is a petition for habeas corpus filed under 28 U.S.C.
§2254. Petitioner was convicted in 1984 of one count of
first degree murder, two counts of aggravated robbery, and
one count of unlawfully possessing a firearm. On February 25,
1992, the Honorable Dale E. Saffels of this court denied
relief. Clemmons v. Davies, 1992 WL 50579 (D. Kan.
Feb. 25, 1992). On August 24, 1992, the U.S. Court of Appeals
for the Tenth Circuit dismissed petitioner's appeal for
lack of prosecution (Doc. #23).
has filed repeated motions for post-conviction relief: a
motion for rehearing in January 2003 (Doc. #25), a motion for
relief from order and judgment in May 2007 (Doc. #38), and a
motion for relief from judgment in March 2015 (Doc. #54).
These filings have been treated as successive applications
for habeas corpus.
March 24, 2017, he again filed a motion for relief from
judgment (Doc. #56) and a notice of filing (Doc. #57). On
April 3, 2017, he filed a supplement to the motion (Doc.
post-judgment motion filed in a habeas corpus action should
be treated as a second or successive application under
Section 2254 if it asserts or reasserts claims of error in
the petitioner's conviction. See Gonzalez v.
Crosby, 545 U.S. 524, 531-32, 538 (2005); Spitznas
v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006). Such
a motion requires prior authorization from the appropriate
federal appeals court to proceed. See 28 U.S.C.
contrast, a post-judgment motion that attacks “not the
substance of the federal court' resolution of a claim on
the merits, but some defect in the integrity of the federal
habeas proceedings”, Gonzalez, 545 U.S. at
532, does not require prior authorization under Section
court finds this pleading is a hybrid, containing both claims
that must be construed as a successive application for habeas
corpus relief and claims that may be raised in a
petitioner's motion alleges “a case of interstate
fraud upon the state courts of Missouri and Kansas, and the
federal district courts of the Western District of Missouri
(Kansas City), and, the District of Kansas” (Doc. #56,
p. 1); he also claims there was obstruction of justice by two
individuals and error by his appellate counsel
(id., p. 2), and that the 2003 destruction of trial
exhibits foreclosed his ability to have those items
independently tested (id., p. 11).
allegations all appear to present claims that allege error in
petitioner's conviction rather than in the prior habeas
corpus proceeding, and the court finds petitioner must seek
prior authorization to pursue relief on these grounds.
also broadly alleges that the habeas corpus action was
decided on an incomplete state record, citing the lack of
records of his initial arrest and of extradition proceedings
conducted in the State of Missouri (id., p. 3.).
Finally, he alleges he has discovered new material facts
concerning the police line-up in which he was identified. The
court finds these claims challenge the integrity of the
habeas corpus review conducted in this case and are properly
presented in motion for relief from judgment.
Rule 60(b) of the Federal Rules of Civil Procedure, the court
may grant relief from a final judgment for reasons including
newly discovered evidence, fraud, or “any other reason
that justifies relief”. However, a motion under Rule
60(b)(2), alleging newly-discovered evidence, or Rule
60(b)(3) alleging fraud or misconduct, must be made no more
than a year after the entry of judgment. See Rule
60(c)(1)(a motion under Rule 60(b) must be made within a
reasonable time, but motions based upon certain grounds must
be made within a year after the entry of the judgment).
Petitioner's motion for relief from judgment was filed
more than twenty years after the denial of his petition and
must be denied.
event, the order denying habeas corpus relief thoroughly
discussed, and rejected, the petitioner's allegation that
the line-up in which he was identified by one of the victims
was impermissibly suggestive. The materials offered by
petitioner do not show any ground for relief.
the court denies the motion for relief from judgment on the
grounds of an incomplete record and ...