Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Long v. United States

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

December 27, 2019

GILLMAN RODDY LONG, a/k/a Dave Gillman Long, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION TO VOID JUDGMENT

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Petitioner, Gillman Roddy Long, moves the court under Federal Rule of Civil Procedure 60(b)(4) to void this court's prior judgment. Docket 48. The United States opposes the motion. Docket 49. For the following reasons, the court denies Long's motion.

         BACKGROUND

         Long was indicted in the United States District Court for the District of South Dakota, Western Division, on July 21, 2009. Cr. Docket 4.[1] The case was tried to a jury, and Long was found guilty of two counts of Aggravated Sexual Abuse and not guilty on one count of Aggravated Sexual Abuse. Cr. Docket 212. Long was represented at trial by Monica Colbath. Cr. Docket 47.

         After Long was found guilty, he moved to vacate the judgment and requested a new trial. Cr. Docket 273. The court held that the government's use of Long's statement did not violate his Fifth Amendment rights because he had not been arrested and was under no compulsion to speak. Cr. Docket 287 at 15. Therefore, Colbath could not be ineffective in her failure to object to the government's use of the statement. Id. The court also found that Long could not show prejudice because overwhelming evidence supported his guilt, and he could not prove Colbath's actions were not sound trial strategy. Id. at 23. The court denied Long's motion. Id. Long was sentenced to life imprisonment. Cr. Docket 290. Long's conviction was affirmed by the Eighth Circuit Court of Appeals. See United States v. Long, 721 F.3d 920, 927 (8th Cir. 2013).

         Long then filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Docket 1. His petition asserted multiple grounds for relief. The district court denied him relief and granted the government's motion to dismiss. Docket 32. The Eighth Circuit Court of Appeals affirmed this dismissal. Docket 42. Long filed a petition for a writ of certiorari to the United States Supreme Court. Docket 46. It was denied. Docket 47. Long now moves under Rule 60(b)(4) to void the judgment of dismissal and claims that one of the issues in his initial § 2255 petition was not addressed by the courts and as a result, the order dismissing his § 2255 petition is void. Docket 48.

         LEGAL STANDARD

         Rule 60(b)(4) of the Federal Rules of Civil Procedure allows reopening of a case when the movant shows that “the judgment is void[.]” Fed.R.Civ.P. 60(b)(4). When dealing with a purported Rule 60(b) motion after the dismissal of a habeas petition, the district court should:

conduct[] a brief initial inquiry to determine whether the allegations in the Rule 60(b) motion in fact amount to a second or successive collateral attack under either 28 U.S.C. § 2255 or § 2254. If the district court determines the Rule 60(b) motion is actually a second or successive habeas petition, the district court should dismiss it for failure to obtain authorization from the Court of Appeals or, in its discretion, may transfer the purported Rule 60(b) motion to the Court of Appeals. Depending on which course of action the district court chooses, the petitioner may either appeal the dismissal of the purported Rule 60(b) motion or, if the district court has elected to transfer the purported 60(b) motion to the Court of Appeals, await the action of the Court of Appeals.

Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002).

         A motion under Rule 60(b)(4) in a § 2255 case should not “be treated as a successive habeas petition if it does not assert, or reassert, claims of error in the movant's [prior] conviction.” Gonzalez v. Crosby, 545 U.S. 524, 538 (2005). But when the Rule 60(b) motion “attacks the federal court's previous resolution of a claim on the merits, ” it should be considered a second or successive § 2255 petition. Id. at 532. (emphasis in original).

         DISCUSSION

         Long argues that his initial § 2255 petition alleged multiple claims and the court failed to address the third claim. Docket 48. He states that his third claim alleged that his attorney provided ineffective assistance of counsel because she failed to object to that portion of the government's closing argument where the prosecutor argued that Long “had not denied the accusations against him.” Id. at 11. Long claims this was not addressed by the district court or the Eighth Circuit Court of Appeals. Id. at 8. Because this issue was not addressed by the courts, Long alleges that this is a true Rule 60(b)(4) motion that should not be construed as a successive § 2255 petition. Id. at 9-10. The government disagrees and contends that this resolution of this claim would be a decision on the merits and as a result, must be treated as a second or successive habeas petition under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. Docket 49 at 5-6. Additionally, the government claims that the district court in fact did resolve the issue. Id. at 6-7.

         First, the court will consider whether the alleged failure of the district court and the Court of Appeals to adjudicate Long's third claim amounts to a defect in the integrity of the prior § 2255 proceeding. The Eighth Circuit has held that “[a] Rule 60(b) motion is a second or successive habeas corpus application if it contains a claim.” Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009). “For the purpose of determining whether the motion is a habeas corpus application, claim is defined as an ‘asserted federal basis for relief from a [federal] court's judgment of conviction' or as an attack on the ‘federal court's previous resolution of the claim on the merits.' ” Id. (quoting Gonzalez, 545 U.S. at 530, 532). The term β€œ β€˜[o]n the merits' refers β€˜to a determination that there exist or do not exist grounds entitling a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.