United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
Robert Garza has filed a “Request for Relief of
Judgment Under Rule 60(b)(3)(4)(5)” (filing no.
1), which has been docketed as a petition for writ of
habeas corpus. 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.
seeks relief from the March 23, 1984 judgment of the Douglas
County District Court of Nebraska convicting him of
kidnapping and attempted second degree murder and sentencing
him to consecutive sentences of life and fifteen to fifty
years imprisonment. (See Filing No. 1 at CM/ECF pp.
8-11.) Garza asserts the trial court lacked jurisdiction
and his convictions and sentences are void because (1) the
trial court failed to vacate his conviction after discovering
witness perjury; 2) the trial court, rather than the jury,
found facts that enhanced Garza's punishment for
kidnapping; (3) Garza was deprived of his right to appeal his
conviction; (4) the prosecutor used peremptory challenges in
a racially biased manner; and (5) the trial court failed to
keep the jury together after being charged as required.
has previously filed petitions for a writ of habeas corpus to
set aside or vacate this same conviction and sentence.
(See Garza v. Britton, et al., No. 8:07CV338 (D.
Neb. 2007) (dismissing petition for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254 with prejudice as
successive); Garza v. Britten, No. 4:03CV3194 (D.
Neb. 2003) (same); Garza v. Hopkins, 4:92CV3186 (D.
Neb. 1992), aff'd 6 F.3d 782 (8th Cir. 1993)).
However, it is clear from the form of the petition here that
Garza seeks relief pursuant to Rule 60(b)(3), (4), and (5) of
the Federal Rules of Civil Procedure as a stand-alone request and
has not sought to raise his present request for relief in any
of his closed federal habeas cases. Garza 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)).
Garza's Rule 60 motion as a § 2254 habeas petition,
likewise, affords him no relief. As stated, Garza
unsuccessfully challenged this same judgment of conviction in
this court in Case Numbers 8:07CV338, 4:03CV3194, and
4:92CV3186. Thus, Garza 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 Petitioner's habeas corpus
petition (filing no. 1) 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) 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: . . .
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing
(4) the judgment is void; [or]
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is no