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Cochrun v. Young

United States District Court, D. South Dakota, Western Division

September 6, 2019

DEAN COCHRUN, Petitioner,
v.
DARIN YOUNG and MARTY J. JACKLEY, ATTORNEY GENERAL, STATE OF SOUTH DAKOTA; Defendants.

          MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S RULE 60 MOTION

          LAWRENCE L. PIERSOL, UNITED STATES DISTRICT JUDGE

         Pending 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 denied.

         BACKGROUND

         On 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.

         On July 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.

         On 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.

         On 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 Court.

         DISCUSSION

         I. Rule 60(a) Motion to Correct Alleged Clerical Mistake in the Record

         Rule 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).

         The 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."

         The 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.

         Regardless 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.

         II. ...


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