United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
Dave Harrison (“Petitioner” or
“Harrison”) has filed a “Motion for Relief
From Judgment Pursuant to Rule 60(b)(4)(6)(d)(1)(2)”
(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, the court
concludes that the petition should be dismissed.
has filed the present action asking the court to grant him
relief from his 1985 judgment of conviction entered in the
Douglas County District Court of Nebraska and to declare said
judgment void. Harrison was convicted of first degree murder
for the June 4, 1984, shooting death of his wife, and he was
sentenced to life in prison. Liberally construed, summarized
and condensed, Harrison now attacks his conviction alleging
the judgment is void because (1) Harrison's right to due
process and Sixth Amendment right to trial by jury were
violated due to improper ex part communications between the
judge and jury members regarding improper jury
communications; (2) no valid warrant of commitment was ever
issued; and (3) the trial court failed to sequester the jury
in violation of Nebraska statute and the Sixth Amendment.
seeks relief from a state-court judgment of conviction which
he has unsuccessfully challenged four times before in habeas
petitions under 28 U.S.C. § 2254. See Harrison v.
Dahm, 880 F.2d 999 (8th Cir.1989) (affirming Judge
Urbom's denial of Harrison's habeas petition);
Harrison v. Clarke, No. 4:02CV3329 (D. Neb., May 8,
2003) (dismissing Harrison's successive petition without
prejudice because not certified by the Eighth Circuit Court
of Appeals), application for permission to file
successive petition denied, No. 04-1486 (8th Cir., April
30, 2004); Harrison v. Britten, No. 8:09CV318, 2009
WL 3390245, at *1 (D. Neb., Oct. 21, 2009) (dismissing
Harrison's successive petition without prejudice because
it was not certified by the Eighth Circuit Court of Appeals),
application for permission to file successive petition
denied, No. 09-3162 (8th Cir., November 6, 2009);
Harrison v. Hansen, No. 8:16CV436, 2016 WL 6311120,
at *1 (D. Neb., Oct. 27, 2016) (detailing Harrison's
state and federal postconviction case history and dismissing
§ 2254 habeas petition as successive). However, it is
clear from the form of the petition that Harrison 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 any of his
closed federal habeas cases. Harrison 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)).
Harrison's 60(b)(4) motion as a § 2254 habeas
petition, likewise, affords him no relief. As stated,
Harrison unsuccessfully challenged this same judgment of
conviction in this court on four previous occasions. Thus,
Harrison 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
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). The court has
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)(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 judgment
is void.” Fed.R.Civ.P. 60(b)(4).
 It should be noted that, after filing
the present action, Harrison filed motions for post-judgment
relief pursuant to Rule 60(b)(4) in 4:02CV3329, 8:09CV318,
and 8:16CV346 which the court denied. (Filing Nos.
24 & 25, No. 4:02CV3329; Filing Nos.
17 & 18, No. ...