SMITH v. CHAPDELAINE (2021)

United States Court of Appeals, Tenth Circuit.2021-03-18No. No. 20-1415

Summary · law.co

Holding. The court denied the certificate of appealability and dismissed the appeal, holding that the district court properly lacked jurisdiction to consider what was substantively a second or successive habeas petition that had not been authorized by the court of appeals.

Ray Smith, a Colorado prisoner convicted of murder in 2009, filed a federal habeas petition challenging his conviction, which the district court denied. After that denial was affirmed on appeal, Smith returned to the district court with what he framed as a Rule 60 motion for relief from judgment, arguing that his trial attorneys were ineffective for failing to obtain surveillance video that might have supported an alibi defense. The district court dismissed this motion, and Smith appealed seeking a certificate of appealability.

The appellate court found that Smith's Rule 60 motion was actually a second or successive habeas petition in disguise, disguised as a procedural motion. Because Smith had not obtained the required authorization from the court of appeals before filing a second or successive petition, the district court lacked jurisdiction to consider it. The court warned Smith that future unauthorized collateral attacks on his conviction could result in sanctions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a Rule 60 motion can be used to circumvent restrictions on second or successive habeas petitions
Jurisdiction of district courts to hear unauthorized second or successive § 2254 petitions
Standards for distinguishing legitimate Rule 60 relief from disguised habeas challenges

Procedural posture

Smith appealed the district court's denial of a Rule 60 motion seeking relief from a prior habeas judgment, after his initial § 2254 petition and first appeal had been denied.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Petitioner Ray A. Smith, a Colorado state prisoner proceeding pro se, seeks a certificate of appealability (COA) from the district courts denial of a motion Smith brought ostensibly under Federal Rule of Civil Procedure 60. We deny a COA and dismiss this appeal.

I. BACKGROUND & PROCEDURAL HISTORY

In 2009, a Denver jury convicted Smith of first-degree murder and witness tampering. After pursuing appeals and postconviction proceedings in state court, he filed a 28 U.S.C. § 2254 petition in the United States District Court for the District of Colorado. Among his many claims, he argued his defense attorneys were ineffective at the murder trial because they did not obtain surveillance video showing when he returned to his apartment on the night of the murder. Presumably Smith believed this video would have supported an alibi defense, i.e., that he could not have been at the scene of the murder when the victim was killed.

The district court rejected this claim for multiple reasons, including lack of prejudice from the allegedly ineffective assistance:

Even if there was video evidence that he returned to his apartment at a specific time, there was overwhelming evidence of his guilt presented at trial, including that the victims blood was found on Mr. Smiths shirt, Mr. Smiths DNA was found on the murder weapon and the victim, and Mr. Smiths blood was found at the scene of the murder. Additionally, Mr. Smiths girlfriend told police that when Mr. Smith came home the night of the murder he said that he had stabbed the victim numerous times and that he might be going to prison. Also, while in jail, he made numerous phone calls implicating himself.

Smith v. Chapdelaine, No. 16-cv-02528, 2018 WL 9593878, at *13 (D. Colo. Aug. 23, 2018) (citations omitted).

The district court denied relief on all other claims too, see id. at *14, and this court denied a COA, see Smith v. Chapdelaine, 774 F. Appx 468, 477 (10th Cir. 2019), cert. denied, ––– U.S. ––––, 140 S. Ct. 838, 205 L.Ed.2d 479 (2020), rehg denied, ––– U.S. ––––, 140 S. Ct. 2661, 206 L.Ed.2d 730 (2020).

Smith returned to the district court and filed a motion ostensibly for relief from judgment under Rule 60, although not specifying which part of the rule he was relying on. Regardless, his motion generally re-argued the trial evidence and characterized unfavorable testimony as false evidence intentionally solicited by the prosecution.

The district court deemed Smiths Rule 60 motion to be, in substance, a second or successive § 2254 petition. Given that, the district court dismissed it for lack of jurisdiction because this court had not authorized it. We denied a COA from that disposition. Smith v. Chapdelaine, 793 F. Appx 810, 812 (10th Cir. 2020).

Smith returned again to the district court and filed another Rule 60 motion, this time invoking Rule 60(d)(3), which provides, “This rule [i.e., Rule 60] does not limit a courts power to ․ set aside a judgment for fraud on the court.” Smiths motion elaborated on the alibi defense alluded to in his original § 2254 petition, i.e., that evidence regarding when he arrived home on the night of the murder would show he could not have been at the scene of the murder when it happened. He again accused his trial counsel of ineffective representation for failure to pursue this defense, again accused the prosecution of knowingly presenting false testimony, and again re-argued the evidence. The district court denied the motion without explanation.

II. ANALYSIS

We have examined Smiths purported Rule 60(d)(3) motion and we find no request for relief that would qualify as true Rule 60 relief. See Spitznas v. Boone, 464 F.3d 1213, 1215–16 (10th Cir. 2006) (distinguishing motions that challenge procedural rulings that precluded a merits determination or defects in the habeas proceeding itself, which may be raised through Rule 60, and motions that “in substance or effect assert[ ] or reassert[ ] a federal basis for relief from the petitioners underlying conviction,” which should be treated as second or successive habeas petitions). Smiths COA application does not argue otherwise. He instead continues to advance his alibi theory.

The district court did not explain why it denied Smiths motion. Regardless, the motion is, in substance, an unauthorized second or successive habeas petition, over which the district court lacked jurisdiction, see In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (“A district court does not have jurisdiction to address the merits of a second or successive ․ § 2254 claim until this court has granted the required authorization.”). Smith therefore cannot show “a substantial showing of the denial of a constitutional right,” so we may not issue a COA. 28 U.S.C. § 2253(c)(2).

III. CONCLUSION

We deny Smiths application for a COA and dismiss this appeal. We also warn Smith that any further attempt by him to begin a collateral attack on his 2009 convictions without first satisfying all of the authorization requirements set forth in 28 U.S.C. § 2244(b), including first moving in this court for authorization, could lead to the imposition of sanctions. See In re Cline, 531 F.3d at 1253. Smiths motion for leave to proceed in forma pauperis is granted.