United States District Court, E.D. Louisiana
ORDER & REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Relief from Judgment
(Rec. Doc. 27) filed by pro se
Petitioner Stephen Windsor (“Petitioner”) and an
opposition thereto (Rec. Doc. 30). Having considered the
motion and legal memoranda, the record, and the applicable
law, the Court finds that the motion should be
AND PROCEDURAL BACKGROUND
1997, Petitioner was convicted on state charges of attempted
armed robbery and illegal use of a firearm and was sentenced
to twenty years in prison on the firearm count and received
an enhanced sentence of 99 years' imprisonment on the
attempted armed robbery count after being adjudicated a
second offender under Louisiana's Habitual Offender Law.
(Rec. Doc. 14 at 1-2). Petitioner's convictions and
99-year sentence were affirmed by the Louisiana Fourth
Circuit Court of Appeal, and the case was remanded for
re-sentencing on the firearm count to correct a discrepancy.
(Rec. Doc. 14 at 2-3). On remand, Petitioner was again
sentenced to twenty years on the firearm count. On September
21, 2001, the Louisiana Supreme Court denied Petitioner's
writ application. (Rec. Doc. 14 at 3). Petitioner did not
apply to the United States Supreme Court for
certiorari. (Rec. Doc. 14 at 3).
2002 and 2018, Petitioner litigated at least eight
applications for post-conviction relief in state court, as
well as a second appeal and a motion to vacate his
adjudication and sentencing as a multiple offender.
See Response, Windsor v. Tanner 7-15, Civ.
Action No. 16-2709 (E.D. La. Nov. 16, 2016). On January 25,
2010, Petitioner filed a petition for writ of habeas corpus,
which this Court dismissed with prejudice as untimely on
December 2, 2010. (Rec. Docs. 1, 17). Petitioner's appeal
of this Court's decision to the Fifth Circuit was denied
(Rec. Docs. 19, 24). On November 30, 2011, the Supreme Court
denied Petitioner's request for certiorari.
(Rec. Docs. 2, 6). The Fifth Circuit also denied applications
that Petitioner submitted in 2011 and 2015 for leave to file
a second or successive habeas petition. Order, In re:
Stephen Windsor, 11-31054 (5th Cir. Jan. 5, 2012);
Order, In Re: Stephen Windsor, 15-30177 (5th Cir.
Apr. 23, 2015). Nevertheless, Petitioner filed another habeas
petition in 2016, which the Court found successive and
dismissed for lack of jurisdiction on June 6, 2018. Report
and Recommendation, Windsor v. Tanner, Civ. Action
No. 16-2709 (E.D. La. Aug. 23, 2017); Order, Windsor v.
Tanner, Civ. Action No. 16-2709 (E.D. La. June 6, 2018).
A third application for leave to file a successive petition
is currently pending before the Fifth Circuit. Application,
In re: Stephen Windsor, 19-30281 (5th Cir. Apr. 12,
November 15, 2017, Petitioner filed the instant Rule 60(b)
motion for relief from judgment. (Rec. Doc. 27). Petitioner
seeks to vacate the judgment against him. (Rec. Doc. 27 at
20). The motion is presently before the Court on the briefs.
Rule of Civil Procedure 60(b) provides that a court,
“[o]n motion and just terms, ” may “relieve
a party or its legal representative from a final judgment,
order, or proceeding” under the following enumerated
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(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 longer equitable;
or (6) any other reason that justifies relief.
moving party, Petitioner has the burden to show why the Court
should vacate the Court's prior judgment. League of
United Latin Am. Citizens, Dist. 19 v. City of Boerne,
659 F.3d 421, 438 (5th Cir. 2011). However, granting relief
under Rule 60 is “an extraordinary remedy which should
be used sparingly.” Templet v. HydroChem Inc.,
367 F.3d 473, 479 (5th Cir. 2004). A motion to vacate a
judgment is “not the proper vehicle for rehashing
evidence, legal theories, or arguments that could have been
offered or raised before the entry of judgment.”
Id. at 478.
Supreme Court has made clear that Rule 60(b) in federal
habeas cases is not to be used to attack the district
court's resolution of a claim on the merits; rather Rule
60(b) motions may attack a “defect in the integrity of
the federal habeas proceedings.” Gonzalez v.
Crosby, 545 U.S. 524, 532-34 (2005). Further, Rule 60
cannot be used to present new claims for relief from the
state court conviction unless the motion relies on either a
new rule of constitutional law or newly discovered facts as
required under AEDPA. Id. at 531-532, citing §
2244(b)(2). Motions that purport to be Rule 60(b) motions,
but which “attack the federal court's previous
resolution of a claim on the merits” are to be
construed as successive habeas petitions. Id. at 532
(emphasis in original). Federal courts are limited in their
ability to consider “second or successive” habeas
applications, and “a claim previously raised must be
dismissed.” In re Bower, 612 Fed.Appx. 748,
752 (5th Cir. 2015); 28 U.S.C. § 2244(b)(1). Rule 60(b)
motions are to be construed as successive habeas petitions
insofar as they urge substantive claims for habeas relief. 28
U.S.C. § 2244(b); Gonzalez v. Crosby, 545 U.S.
asserts that he is challenging this Court's ruling under
Rule 60(b)(6). (Rec. Doc. 27). Petitioner argues throughout
the briefs that his claims have never been addressed on the
merits because they were improperly deemed untimely and
repetitive. As such, much of Petitioner's motion focuses
on allegations that the State failed to disclose various
evidence in violation of Brady v. Maryland, 373 U.S.
83 (1963) and its progeny. Petitioner argues that the alleged
Brady violations constitute “manifest
injustices” that warrant reopening this matter and
permitting Petitioner to file an amended petition. (Rec. Doc.
27 at 20). The Fifth Circuit has noted that “a motion
that ‘asks the district court for an opportunity to
offer facts that (in the petitioner's view) will prove
that his conviction was constitutionally infirm,' raises
‘a paradigmatic habeas claim.'” In re
Jasper, 559 Fed.Appx. 366, 371 (5th Cir. 2014) (quoting
Rodwell v. Pepe, 324 F.3d 66, 71-72 (1st Cir.
2003)). Accordingly, the fact that Petitioner has raised his
Brady claims in a Rule 60(b) motion by asserting
that they make his case “extraordinary” does not
alter their substantive character. See Gonzalez, 545
U.S. at 531 (noting that “[u]sing Rule 60(b) to present
new claims for relief from a state court's judgment of
conviction-even claims couched in the language of a true Rule
60(b) motion-circumvents AEDPA's
requirement[s]….”). Thus, because Petitioner
argues the existence of grounds entitling him to habeas
relief, he is making a habeas claim and his motion must be
treated as a successive habeas petition. Because district
courts generally lack jurisdiction to consider second or
successive habeas petitions, Petitioner's instant motion
must be denied for the reasons previously stated by the Court
in dismissing Petitioner's habeas petition in 2016.
See Report and Recommendation, Windsor v.
Tanner, Civ. Action No. 16-2709 (E.D. La. Aug. 23,
2017); Order, Windsor v. Tanner, Civ. Action No.
16-2709 (E.D. La. June 6, 2018).
Petitioner's motion were not subject to denial for
constituting a successive habeas petition, his remaining
arguments are unavailing. Specifically, Petitioner argues
that the Court erred in denying his original habeas petition
as untimely. Relying on Jimenez v. Quarterman, 555
U.S. 113 (2009), Petitioner contends that the running of the
one-year statute of limitations should be recalculated in
light of his second appeal and that he is entitled to
equitable tolling. (Rec. Doc. 27 at 7-10). This Court
disagrees. A change in decisional law effected after the
entry of a judgment does not constitute an exceptional
circumstance warranting relief from that judgment. See
Hernandez v. Thaler, 630 F.3d 420, 430 (5th Cir. 2011)
(per curiam) (noting that “[w]ell-settled
precedent dictates that [petitioner] may not use Rule
60(b)(6) to claim the benefit of the Supreme Court's
decision in Jimenez.”). Moreover, the instant
Rule 60(b) motion was not made “within a reasonable
time, ” as is ...