United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
following recommended disposition has been sent to United
States District Court Judge Billy Roy Wilson. 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.
a 2003 jury trial in Union County, DeLarron Keith Washington
(“Washington”) was found guilty of burglary,
battery, and aggravated robbery, and was sentenced to
forty-four years of imprisonment in the Arkansas Department
of Correction (ADC). His convictions were affirmed on direct
appeal. Washington v. State, No. CACR 04-18 (Oct.
27, 2004) (unpublished). Washington then sought
post-conviction relief pursuant to a Rule 37 petition. The
trial court denied relief on the merits. Docket entry no. 2,
page 53. The Arkansas Supreme Court summarily dismissed the
appeal because Washington failed to verify the Rule 37
petition as required by Ark. R. Crim. P. 37.1(d)(2005).
Docket entry no. 2.
October 2006, Washington filed his petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He alleged
as grounds ineffective assistance of trial counsel, failure
of the trial court to hold an evidentiary hearing on
Washington's Rule 37 petition, failure of the trial court
to make written findings of fact in its order denying Rule 37
relief, error by the Arkansas Supreme Court in dismissing his
appeal of the Rule 37 denial due to a procedural violation,
and failure of the prosecution to disclose exculpatory
evidence. See docket entry no. 2.
States Magistrate Judge Henry L. Jones, Jr. recommended
dismissal of the habeas petition as untimely in a September
2007 Report and Recommendation. Docket entry no. 10. United
States District Judge Billy Roy Wilson adopted the Report and
Recommendation, and Judgment was entered denying relief in
October 2007. Docket entry no. 13. In November 2007, Judge
Wilson denied Washington's request for a certificate of
appealability. Docket entry no. 16. Washington then sought a
certificate of appealability from the Eighth Circuit Court of
Appeals, which denied his request in January 2008. Docket
entry no. 22. Additional requests for permission from the
Eighth Circuit Court of Appeals to file a second or
successive habeas corpus petition were denied in October 2008
and January 2009. Docket entry nos. 25 and 27.
about seven and a half years after the last ruling by the
Eighth Circuit Court of Appeals, Washington has filed a
motion for relief from the judgment pursuant to Federal Rule
of Civil Procedure 60(b)(6). He seeks review of ineffective
assistance of counsel claims pursuant to the decisions of the
United States Supreme Court in Martinez v. Ryan, 566
U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct. 1911
(2013). For the reasons stated below, the Court
recommends that Washington's motion be denied.
extent Washington's issues do not constitute
“claims” for purposes of a second or successive
habeas petition and are properly asserted in a Rule 60(b)(6)
motion, Washington is not entitled to relief. “To
warrant relief from a judgment under Rule 60(b)(6) of the
Rules of Federal Civil Procedure, the motion must demonstrate
‘extraordinary circumstances.'” Ferguson
v. Hobbs, No. 5:11cv267, 2013 WL 4431294, *2 (E.D. Ark.
Aug. 16, 2013 (quoting Gonzalez v. Crosby, 545 U.S.
524, 535 (2005)). Washington asserts such circumstances exist
in the form of the decisions from the Supreme Court in
Martinez in 2012 and Trevino in 2013.
However, in Ferguson, United States District Court
Susan Webber Wright considered this argument and held that
Martinez and Trevino do not constitute
“extraordinary circumstances” sufficient to
support Rule 60(b)(6) relief. Id. See also McCullough v.
Kelley, No. 5:07cv15-BSM, slip op. at 1 (E.D. Ark. March
25, 2016)(adopting Magistrate Judge's findings and
recommendation that Martinez and Trevino do
not constitute extraordinary circumstances justifying relief
under Rule 60(b)(6)); Scott v. Hobbs, 2014 WL
3700581 (E.D. Ark. 2014); Hill v. Hobbs, No.
5:13cv00015-JLH, slip op. at 3 (E.D. Ark. June 6, 2014);
Diaz v. Stephens, 731 F.3d 370 (5th Cir.
2013) (Martinez decision is not an extraordinary
circumstance, and the subsequent Trevino decision
does not change that conclusion in any way). We find
Washington fails to demonstrate “extraordinary
circumstances” meriting Rule 60(b)(6) relief.
Accordingly, we recommend the motion (docket entry no. 29) be
to the extent Washington's motion could be deemed to
constitute a “claim, ” it is an attempt to file a
second or successive habeas petition, and must be dismissed
because Washington has not first obtained the permission of
the Eight Circuit Court of Appeals to file the petition.
See 28 U.S.C. § 2244(b); see also Ward v.
Norris, 577 F.3d 925 (8th Cir. 2009).
foregoing reasons, we recommend the motion for Rule 60(b)(6)
relief be denied.
Wendy Kelley is the current director
the ADC. When this case was originally filed, Larry Norris
held that position, and the style of the case reflected
Fed. R. Civ. P. 60(b)(6) provides that
a court may relieve a party from a final judgment “for
any other reason that ...