United States District Court, D. South Dakota, Western Division
ORDER DENYING MOTION TO VOID JUDGMENT
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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
was indicted in the United States District Court for the
District of South Dakota, Western Division, on July 21, 2009.
Cr. Docket 4. 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.
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.
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.
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.
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).
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.
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 “
‘[o]n the merits' refers ‘to a determination
that there exist or do not exist grounds entitling a