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O'Neal v. Kenny

United States District Court, D. Nebraska

October 10, 2014

KEVA TYREE O'NEAL, Petitioner,
MICHAEL KENNY, Warden, Nebraska State Penitentiary, Respondent.


RICHARD G. KOPF, Senior District Judge.

This matter is before the court on Keva Tyree O'Neal's Motion for Relief from Judgment or Order (Filing No. 149). O'Neal filed this motion pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the court will deny O'Neal's motion.


O'Neal is a state prisoner incarcerated in the Nebraska State Prison, having been convicted in 1997 of three counts of attempted assault in the first degree and two counts of use of a deadly weapon to commit a felony in the Douglas County, Nebraska, District Court. See State v. O'Neal , No. A-04-536, 2005 WL 1022027 (Neb. Ct. App. May 3, 2005). O'Neal filed a Petition for Writ of Habeas Corpus (Filing No. 1) in this court seeking relief from the 1997 conviction. On October 17, 2003, the court denied habeas corpus relief. The court held that the petition was time barred under the Antiterrorism and Effective Death Penalty Act's one-year statute of limitations ( see Filing No. 59). The Eighth Circuit Court of Appeals affirmed the court's judgment in O'Neal v. Kenny , 579 F.3d 915 (8th Cir. 2009).

O'Neal has previously filed two motions seeking relief from judgment in this matter (Filing No. 83 and Filing No. 142). Both motions were denied ( See Filing No. 99 and Filing No. 143). O'Neal filed the pending motion for relief from judgment on May 19, 2014 (Filing No. 149). He has also filed requests for a hearing, expedited review of his motion, and the appointment of counsel (Filing Nos. 151, 152, and 153).[1]


O'Neal's basis for seeking relief is difficult to decipher. As best as the court can tell, O'Neal argues in his pending motion that he is entitled to relief under Rule 60(b)(6)[2] in light of the United States Supreme Court's decision in McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). Rule 60(b)(6) provides that a court may relieve a party from a final judgment or order for "any [] reason that justifies relief." It is well established that relief under Rule 60(b)(6) requires a showing of exceptional or extraordinary circumstances. See Gonzalez v. Crosby, 545 U.S. 524 (2005). "Intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)." Agostini v. Felton, 521 U.S. 203, 239 (1997).

In McQuiggin, the Supreme Court held that a habeas petitioner who can show actual innocence under the rigorous standard of Schlup v. Delo, 513 U.S. 298 (1995), is excused from the procedural bar of the statute of limitations under the miscarriage of justice exception. A claim of actual innocence under Schlup is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Schlup, 513 U.S. at 315. However, the Supreme Court in McQuiggin cautioned that "tenable actual-innocence gateway pleas are rare." McQuiggin, 133 S.Ct. at 1928.

Here, even assuming the Supreme Court's holding in McQuiggin represents an extraordinary circumstance sufficient to trigger Rule 60(b)(6) relief, O'Neal fails to show that McQuiggin has any bearing on his case. Specifically, O'Neal offers no "new evidence" to establish his actual innocence, let alone evidence so convincing that "it is more likely than not that no reasonable juror would have convicted him in light of new evidence." McQuiggin, 133 S.Ct. at 1935.

Even under the most liberal construction, O'Neal has not set forth "exceptional circumstances" that prevented him from fully litigating his claims or receiving adequate redress. Indeed, O'Neal appears to repeat the same argument he raised in his post-conviction proceedings in the Nebraska state courts in 2005. O'Neal set forth in the pending motion seeking relief from judgment that:

A Mr. Jerome Matthews, the Brother-In-Law of the said Mr. Edward Duncan informed the Petitioner that Mr. Duncan informed him that it was his Brother Allen who had been shot, and Mr. Al1en Duncan confirmed this. This provided me with reasonable suspicion that there had been crimes committed which resulted in false accusations made against the Petitioner and a wrongful conviction obtained thereby which is necessarily void.

(Filing No. 149 at CM/ECF p. 4.)

While this statement alone is somewhat baffling, the Nebraska Court of Appeals's 2005 opinion provides much-needed context for the statement. In O'Neal's post-conviction action in the Nebraska state courts, O'Neal argued that the information was fatally defective because it improperly identified the victim of the shooting. Specifically, O'Neal argued the information charged him "with an offense against Edward Duncan, ' who was actually Allan Duncan' impersonating Edward Duncan." O'Neal, No. A-04-536, 2005 WL 1022027 at * 4.[3]

O'Neal's motion fails for an additional reason: it is time-barred by the terms of Rule 60 itself, which provides that "[a] motion under Rule 60(b) must be made within a reasonable time." Fed.R.Civ.P. 60(c)(1). O'Neal sets forth in his motion for relief from judgment that he learned of this alleged improper identification of the victim more than a decade ago, on February 21, 1999. ( See Filing No. 149 at CM/ECF p. 4.) However, even assuming the timeliness inquiry starts as of the date of the Supreme Court's decision in McQuiggin, the motion fails on the merits for the reason that O'Neal has provided no new evidence that makes ...

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