United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
has filed a mixed Rule 60(b) motion and a habeas corpus
petition under 28 U.S.C. § 2254. The motion and petition
are in one document. After initial review under Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts, I will dismiss the Rule 60(b) motion with
prejudice and dismiss the habeas petition without prejudice
for failure to comply with Rule 2. I will give Petitioner
leave to file another habeas corpus petition using the proper
form in conformity with Rule 2.
judicial notice of state court records. See Stutzka v.
McCarville, 420 F.3d 757, 761 n.2 (8th Cir. 2005) (court
may take judicial notice of public records); Federal Rule of
Evidence 201 (providing for judicial notice of adjudicative
facts). Nebraska's judicial records may be retrieved
on-line through the Justice site. (It is available
The number for the direct appeal is 15-45 and trial court
number is 13-15 in the District Court of Webster County,
Nebraska. For the opinion of the Nebraska Supreme Court
affirming Petitioner's conviction and sentence of life in
prison for the crime of first degree murder and various other
convictions and sentences for use of a deadly weapon to
commit a felony, and burglary, see State v.
Casterline, 878 N.W.2d 38 (Neb. 2016).
“[i]t 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).
as stated in Dubin v. Real, 191 Fed.Appx. 528
(9th Cir. 2006), the Courts of Appeal appear to
unanimously reject the use of Rule 60(b) to collaterally
attack a criminal conviction:
The Federal Rules of Civil Procedure, by their own terms,
apply only to civil actions. See Fed. R. Civ. P. 1
(stating that “these rules govern the procedure ... in
all suits of a civil nature”). Every circuit that has
addressed the question has agreed that a defendant may not
bring an action for fraud upon the court to collaterally
attack a criminal conviction. See United States v.
O'Keefe, 169 F.3d 281, 285 (5th Cir. 1999) (noting
that Supreme Court precedent “certainly does not
require or contemplate that Rule 60(b)(6) [for fraud upon the
court] ... be applied in criminal cases”); United
States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998)
(“We hold that the defendant cannot challenge the
criminal forfeiture orders at issue under the Federal Rules
of Civil Procedure.... Rule 60(b) simply does not provide for
relief from judgment in a criminal case....”) ... We
agree with our sister circuits that an action under Rule
60(b) of the Federal Rules of Civil Procedure cannot be used
to collaterally attack a criminal conviction.
Id. at 529-30 (internal citations and footnote
it is clear that Petitioner is endeavoring to use Rule 60(b)
in a manner that is not permitted-to attack the state
criminal conviction-his motion will be dismissed with
prejudice. However, I shall withhold judgment until the
§ 2254 matter is resolved so as to avoid the possibility
of multiple appeals.
Petitioner has also filed a petition seeking a writ of habeas
corpus under § 2254. His petition is not on the standard
form. It is not even close. Rule 2(d) of the Rules Governing
Section 2254 Cases in the United States District Courts
provides: “Standard Form. The petition
must substantially follow either the form appended to these
rules or a form prescribed by a local district-court rule. .
. .” (Emphasis in original). Therefore, I will dismiss
the pending petition, but allow Petitioner to file an new
petition using the standard form.
Rule 60(b) motion is dismissed and denied with prejudice.
Judgment will be held in abeyance until conclusion of the
habeas corpus matter.
petition (filing no. 1) is dismissed without prejudice.
Petitioner may file a new petition using the standard form
which must be received by the Clerk of Court no later than
Friday, September 28, 2018.
Clerk shall mail to the Petitioner a copy of the standard
form for habeas ...