United States District Court, D. Nebraska
BARRY W. FLETCHER, Petitioner,
BRAD HANSEN, Respondent.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
Barry W. Fletcher has filed a “Request for Relief of
Judgment Under Rule 60(b)(4)” (filing no. 1),
which has been docketed as a petition for writ of habeas
corpus, a supplement to the petition (filing no. 6),
and a motion to proceed in forma pauperis (filing no.
4). The court's records reflect that Fletcher
recently paid the $5.00 filing fee, so I will deny his motion
to proceed in forma pauperis as moot. Conducting an initial
review under Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, I conclude
that the petition should be dismissed.
has filed the present action asking the court to grant him
relief from the judgment of conviction entered in the
Lancaster County District Court of Nebraska in No. CR07-328
and to declare said judgment void. In CR07-328, Fletcher was
found guilty after a jury trial of Burglary, Theft, and
Possession of Burglar's Tools and received a habitual
offender sentencing enhancement on each of the three counts.
(Filing No. 1 at CM/ECF p. 2; Filing No. 6 at
CM/ECF pp. 5.) Liberally construed, summarized and
condensed, Fletcher now attacks his conviction alleging the
judgment is void because (1) the trial court lacked
jurisdiction due to a fatally defective Amended Information;
(2) the trial court failed to properly instruct the jury in
violation of due process; (3) Fletcher's sentence
enhancement for being a habitual criminal constitutes a
denial of equal protection and due process; and (4) no valid
judgment of conviction was signed by the trial judge and
entered by the clerk.
seeks relief from a state-court judgment of conviction which
he has unsuccessfully challenged twice before in habeas
petitions under 28 U.S.C. § 2254. (See Fletcher v.
Gage, No. 4:14CV3214 (D. Neb.) (dismissing petition for
writ of habeas corpus brought pursuant to 28 U.S.C. §
2254 with prejudice); Fletcher v. Frakes, No.
8:16CV468 (D. Neb.) (dismissing § 2254 habeas petition
as successive)). However, it is clear from the form of the
petition that Fletcher seeks relief pursuant to Rule 60(b)(4)
of the Federal Rules of Civil Procedure as a stand-alone
request and has not sought to raise his present request for
relief in either of his closed federal habeas cases,
4:14CV3214 or 8:16CV468. Fletcher cannot use Rule 60 to
attack his state criminal judgment.
is well established that a Rule 60(b) motion may not be used
to ‘relieve a party from operation of a judgment of
conviction or sentence in a criminal case.'”
United States v. Shenett, No. CRIM.A. 05-431 MJD,
2015 WL 3887184, at *2 (D. Minn. June 24, 2015) (quoting
United States v. Hunt, No. 4:07-CR-121, 2008 WL
4186258, at *1 (E.D.Mo. Sept. 5, 2008) (holding that a
defendant's Rule 60(b)(4) motion to vacate criminal
judgment “is frivolous because a prisoner may not
attack the legality of his conviction through Rule
60(b)”)). Rule 60(b)(4) “is a rule of civil
procedure and thus not available to challenge criminal
judgments, nor may it be used to challenge state judgments of
any sort in federal court.” Sherratt v. Friel,
275 Fed.Appx. 763, 767 n.1 (10th Cir. 2008). “At best,
in its discretion a district court may choose to interpret a
60(b)(4) motion attacking a state criminal judgment as a
§ 2254 petition, but all the strictures of AEDPA will
apply.” Id.(citing Gonzalez v.
Crosby, 545 U.S. 524, 531-35 (2005) (explaining proper
role of Rule 60(b) in habeas cases)).
Fletcher's 60(b)(4) motion as a § 2254 habeas
petition, likewise, affords him no relief. As stated,
Fletcher unsuccessfully challenged this same judgment of
conviction in this court in Case Numbers 4:14CV3214 and
8:16CV468. Thus, Fletcher would be required to seek the
permission of the Court of Appeals to commence this
successive action. 28 U.S.C. § 2444(b)(2) & (3)(A).
He has not done so, and this matter must be dismissed.
Burton v. Stewart, 549 U.S. 147, 152 (2007) (the
district court lacked jurisdiction to entertain habeas
petition since prisoner did not obtain an order authorizing
him to file second petition).
a petitioner cannot appeal an adverse ruling on his petition
for writ of habeas corpus under § 2254 unless he is
granted a certificate of appealability. 28 U.S.C. §
2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P.
22(b)(1). The standards for certificates (1) where the
district court reaches the merits or (2) where the district
court rules on procedural grounds are set forth in Slack
v. McDaniel, 529 U.S. 473, 484-85 (2000). I have applied
the appropriate standard and determined that Petitioner is
not entitled to a certificate of appealability.
THEREFORE ORDERED that:
1. Petitioner's motion to proceed in forma pauperis
(filing no. 4) is denied as moot.
2. Petitioner's habeas corpus petition (filing no.
1; filing no. 6) is denied and dismissed with
prejudice. The court will not issue a certificate of
appealability in this matter. A separate judgment will be
entered in accordance with this order.
 Rule 60(b)(4) states that, “[o]n
motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or
proceeding for the following reasons: . . . (4) the ...