United States District Court, D. South Dakota, Western Division
MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S
RULE 60 MOTION
LAWRENCE L. PIERSOL, UNITED STATES DISTRICT JUDGE
before the Court is Petitioner, Dean Allen Cochran's,
Motion for Relief from Judgment or Order pursuant to Rule
60(a) and 60(b) of the Federal Rules of Civil Procedure. Doc.
60. For the following reasons, Petitioner's motion is
October 9, 2014, Petitioner filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. On June 3,
2015, the Court issued an Order and Judgment denying
Petitioner's Application for Writ of Habeas Corpus with
prejudice and denying Petitioner a Certificate of
Appealability. Docs. 44, 45.
9, 2015, Petitioner filed a notice of appeal with the Eighth
Circuit Court of Appeals. Doc. 46. On September 23, 2015, the
Eighth Circuit Court of Appeals issued a judgment denying
Petitioner a certificate of appealability. Doc. 53.
January 11, 2017, Petitioner filed a motion for
reconsideration asking the Court to reconsider its decision
denying Petitioner's request to appoint counsel in his
habeas proceeding, and Petitioner's request for an
evidentiary hearing, and Petitioner's motion was denied.
Docs. 56, 57.
December 3, 2018, Petitioner filed a motion for relief from
judgment pursuant to Rule 60(a) and (b)(1), (2), (3), (4),
and (6). Doc. 60. This motion is presently pending before the
Rule 60(a) Motion to Correct Alleged Clerical Mistake in the
60(a) permits the correction of errors in judgments, orders,
and other parts of the record arising from oversight or
omission. Fed.R.Civ.P. 60(b). Rule 60(a) "permits only a
correction for the purpose of reflecting accurately a
decision that the court actually made." Kocher v.
Dow Chem. Co., 132 F.3d 1225, 1229 (8th Cir. 1997).
basis of Petitioner's Rule 60 motion is as follows: 1)
Petitioner alleges that the Magistrate Judge's Report and
Recommendation is incorrect. Petitioner states that it reads
"5 felony-punishable by up to ten years in
prison," and that it should read "5 felony -
punishable by up to five years in prison."
Court need not review whether it made a clerical mistake as
alleged by Petitioner because the contested language had no
bearing upon the Court's denial of Petitioner's
§ 2254 application. In her report and recommendation,
the magistrate judge evaluated Petitioner's "actual
and factual innocence" claim which, the magistrate judge
found, seemed premised on either 1) Petitioner's
assertion that he was erroneously charged "first degree
kidnapping-a class C felony punishable by up to life in
prison," instead of "parental kidnapping [ ] (a
Class 5 felony-punishable by up to ten years in
prison);" or on 2) Petitioner's assertion that he
should not have been charged with criminal kidnapping under
either statute. Doc. 30 at 25-26. The state habeas court had
concluded that because Petitioner's parental rights had
been terminated before the time of the incident which formed
the basis of his conviction, the charge of kidnapping,
instead of parental kidnapping, was appropriate to him and
that his counsel was not ineffective for failing to insist
that Petitioner plead only to the parental kidnapping charge.
Doc. 30 at 25.
of the penalties imposed under first degree kidnapping and
parental kidnapping, the report and recommendation stated
that Petitioner was in essence attempting to attack the
validity of the state court guardianship and juvenile
proceedings which he may not do in a habeas corpus
proceeding. For this reason, Petitioner's Rule 60(a)
motion is denied.