United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
closed federal habeas matter under 28 U.S.C. § 2254 is
before the court on Petitioner Roger McPherson's
(“Petitioner” or “McPherson”) motion
for post-judgment relief under Rule 60(b) of the Federal
Rules of Civil Procedure. (Filing No. 16.) The
motion will be denied as untimely.
February 25, 2016, the court dismissed McPherson's
Petition for Writ of Habeas Corpus which challenged his 2001
conviction, after a jury trial, for two counts of first
degree sexual assault on a child and two counts of child
abuse. (Filing No. 14; Filing No. 15.) The
court determined the petition was untimely under 28 U.S.C.
§ 2244(d)(1)(A), and that McPherson made no showing of
actual innocence to excuse the bar of the statute of
limitations under the miscarriage-of-justice exception. In
addition, the court determined McPherson was not entitled to
equitable tolling of the limitations period as he had not
demonstrated that there were extraordinary circumstances
beyond his control making it impossible to file his federal
petition. (Filing No. 14.) The court declined to
issue a certificate of appealability, and McPherson did not
appeal the court's dismissal of his habeas petition.
October 17, 2017, McPherson filed the present motion. He asks
the court to reopen his habeas case under Rule 60(b)(2) and
(6) of the Federal Rules of Civil Procedure and sets forth
several allegations of “newly discovered
evidence” in support of his motion. All but one of the
allegations of newly discovered evidence involve
“prospective testimony” of various witnesses. The
remaining allegation asserts various errors committed by
McPherson's trial, appellate, and postconviction counsel.
Standard for Review of 60(b) Motion in Closed Habeas
prisoner may file a second or successive petition under
§ 2254 only after obtaining authorization to do so from
the appropriate United States Court of Appeals. 28 U.S.C.
§ 2244(b)(3). The Eighth Circuit has directed that where
a prisoner files a Rule 60(b) motion following the dismissal
of a habeas petition, the district court should file the
motion and then conduct a brief initial inquiry to determine
whether the allegations in the Rule 60(b) motion in fact
amount to a second or successive collateral attack under 28
U.S.C. § 2254. Boyd v. United States, 304 F.3d
813, 814 (8th Cir. 2002). If the district court determines
the Rule 60(b) motion is actually a second or successive
habeas petition, it should dismiss the motion for failure to
obtain authorization from the Court of Appeals or, in its
discretion, transfer the purported Rule 60(b) motion to the
Court of Appeals. Boyd, 304 F.3d at 814.
Eighth Circuit has explained,
A Rule 60(b) motion is a second or successive habeas corpus
application if it contains a claim. For the purpose of
determining whether the motion is a habeas corpus
application, claim is defined as an “asserted federal
basis for relief from a state court's judgment of
conviction” or as an attack on the “federal
court's previous resolution of the claim on the
merits.” Gonzalez [v. Crosby], 545 U.S.
[524, ] 530, 532 [(2005)]. “On the merits”
refers “to a determination that there exist or do not
exist grounds entitling a petitioner to habeas corpus
relief under 28 U.S.C. §§ 2254(a) and (d).”
Id. at 532 n. 4, 125 S.Ct. 2641. When a Rule 60(b)
motion presents a claim, it must be treated as a second or
successive habeas petition under AEDPA [Antiterrorism and
Effective Death Penalty Act].
No claim is presented if the motion attacks “some
defect in the integrity of the federal habeas
proceedings.” Id. at 532, 125 S.Ct. 2641.
Likewise, a motion does not attack a federal court's
determination on the merits if it “merely asserts
that a previous ruling which precluded a merits
determination was in error-for example, a denial for such
reasons as failure to exhaust, procedural default, or
statute-of-limitations bar.” Id. at n.4.
Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009)
(emphasis in original).
Petitioner's Motion is Not a Successive Petition
alleges he has newly discovered “prospective
testimony” from several different witnesses that could
not have been discovered at trial or direct appeal and would
demonstrate his actual innocence. The evidence alleged by
McPherson includes testimony from an expert witness regarding
observations of the victims, McPherson's daughters;
testimony from one of his daughters recanting her earlier
statements; testimony from hostile witnesses regarding
inconsistencies in their previous statements; and testimony
regarding discovery of missing pages of trial testimony in
the state court Bill of Exceptions. McPherson also asserts
allegations of wrongdoing and ineffective assistance by his
trial, appellate, and postconviction counsel.
construed, McPherson seeks to challenge the court's
determination that McPherson made no showing of actual
innocence to excuse the bar of the statute of limitations. To
that extent, McPherson's motion does not attack the
court's determination on the merits and does not
constitute a second or successive ...