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McCullough v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

March 1, 2016

WALTER A. McCULLOUGH, Petitioner,
v.
WENDY KELLEY, Director of the Arkansas Department of Correction, Respondent.

FINDINGS AND RECOMMENDATION

PATRICIA S. HARRIS, Magistrate Judge.

INSTRUCTIONS

The following proposed Findings and Recommendation have been sent to United States District Judge Brian S. Miller. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

FINDINGS AND RECOMMENDATION

In April of 2005, petitioner Walter A. McCullough ("McCullough") was convicted of committing a terroristic act and first degree battery and sentenced to the custody of respondent Wendy Kelley ("Kelley"). After a direct appeal and a series of collateral attacks on the conviction in state and federal court, McCullough began the case at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. United States District Judge Susan Webber Wright dismissed the petition without prejudice, though, when it was found that the petition contained unexhausted claims.

The case at bar was re-opened after McCullough filed a renewed amended petition. After the parties filed materials in support of, and in opposition to, the petition, United States Magistrate Judge H. David Young recommended that the petition be denied. He so recommended because all but two of McCullough's claims were procedurally barred from federal court review, and the remaining claims warranted no relief. See Document 73.[1] United States District Judge Brian S. Miller adopted Judge Young's recommendation and dismissed this case with prejudice in August of 2008. See Documents 76, 77. Judge Miller thereafter denied McCullough's application for a certificate of appealability, see Document 83, and the Court of Appeals affirmed the denial of the application, see Document 94.

In January of 2016, McCullough filed the pending motion for renewed amended petition. See Document 99. Although a concise summary of his motion is not easy, he appears to ask that this case be re-opened so that his claims previously rejected as procedurally barred from federal court review can now be considered. It is his position that the United States Supreme Court decisions in Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), made a change in the law and now warrant the consideration of those claims. He additionally offered new claims challenging his attorney's effectiveness.

Respondent Wendy Kelley ("Kelley") filed a response to the motion and maintained that it should be denied. She maintained that his motion is a request to file a second or successive petition, and "this Court lacks jurisdiction to consider it unless and until the Court of Appeals gives authorization to do so." See Document 104 at 1-2.[2]

The filing of a second or successive petition is governed by 28 U.S.C. 2244(b)(3)(A). It provides the following: "Before a second or successive application... is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." The question is whether the motion at bar is a "second or successive petition" requiring McCullough to obtain authorization from the Court of Appeals to file the motion in the district court.

Although McCullough failed to state the basis for his motion, he appears to have filed it pursuant to Federal Rule of Civil Procedure 60(b)(6).[3] A motion pursuant to Rule 60(b)(6) can be a "second or successive petition" requiring the authorization of the Court of Appeals in the following instance:

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, 545 U.S. at 530... "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... When a Rule 60(b) motion presents a claim, it must be treated as a second or successive habeas petition under AEDPA [i.e., the Antiterrorism and Effective Death Penalty Act of 1996].
No claim is presented if the motion attacks "some defect in the integrity of the federal habeas proceedings." Id. at 532... 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. This reasoning is illustrated in Gonzalez, in which the petitioner moved for relief from judgment challenging the district court's determination that his habeas petition was time barred under AEDPA. Because the motion challenged only the statute of limitations that applied to the habeas proceeding and did not assert a claim, the Supreme Court held that it was not a second or successive habeas petition. Id. at 535-36...

See Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009).

The request contained in McCullough's motion is actually two-fold. He first asserts that the previous ruling on his petition was in error, specifically, that a change in the law brought about by Martinez v. Ryan and Trevino v. Thaler now warrants the consideration of his claims previously rejected as procedurally barred from federal court review. His assertion does not advance new claims and ...


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