Lucky v. Ward, (10th Cir. 2000)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

BOBBY EUGENE LUCKY,

Petitioner-Appellant,

v.



RON WARD, Warden,

Respondent-Appellee.

No. 00-6125

(W.D. Okla.)

(D.Ct. No. 97-CV-618-L)

ORDER AND JUDGMENT
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Before BRORBY, KELLY, and

MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Appellant Bobby Eugene Lucky, a state inmate appearing pro se, appeals

the district court's denial of his "Motion for Relief from Order," which the

district court construed as a Federal Rule of Civil Procedure 60(b)(6) motion. In

his motion, Mr. Lucky sought relief from the district court's order and judgment

denying him federal habeas relief under 28 U.S.C. § 2254. Mr. Lucky now

appeals the district court's denial of his Rule 60(b)(6) motion.

The procedural background in this case warrants a short discussion. On

April 22, 1997, Mr. Lucky filed his § 2254 motion, seeking habeas relief on

sundry federal and state issues. The district court referred the matter to a

magistrate judge who first ruled on a variety of motions filed by both Mr. Lucky

and the government.(1)

Ultimately, on February 4, 1999, the magistrate judge

issued a cogent and exhaustive Report and Recommendation, recommending

denial of Mr. Lucky's § 2254 petition. On March 31, 1999, after reviewing Mr.

Lucky's objections thereto, the district court adopted the Report and

Recommendation and denied Mr. Lucky's petition.

On April 20, 1999, Mr. Lucky timely filed his notice of appeal. A few

days later, Mr. Lucky filed the above-referenced Rule 60(b)(6) motion for

disposition by the district court. On June 18, 1999, the district court construed

Mr. Lucky's notice of appeal as a motion for a certificate of appealability to

appeal the denial of his 28 U.S.C. § 2254 habeas petition, and denied the motion.

On August 31, 1999, this Court dismissed Mr. Lucky's appeal for lack of

prosecution pursuant to Tenth Circuit Rule 42.1. Finally, on March 22, 2000, the

district court issued an order denying Mr. Lucky's Rule 60(b)(6) motion and

holding Mr. Lucky failed to demonstrate relief was warranted. It is this district

court order from which Mr. Lucky now appeals.

After reviewing the record, we hold the district court correctly construed

Mr. Lucky's "Motion for Relief from Order" as a Rule 60(b)(6) motion. A

reading of Mr. Lucky's motion shows he intended to seek relief from the district

court's final order and judgment on his April 1997 § 2254 petition under Rule

60. We have held a post-judgment Rule 60(b)(6) motion, filed in a habeas

proceeding, should be treated as "a second habeas petition under the

Antiterrorism and Effective Death Penalty Act of 1996 ...." See Lopez v.

Douglas, 141 F.3d 974, 975 (10th Cir.), cert. denied, 525 U.S. 1024 (1998).

In

addition, we have stressed that a Rule 60(b)(6) motion cannot be used to

circumvent the restrictions imposed on successive petitions. See Lopez, 141 F.3d

at 975. Specifically, § 2244(b)(3)(A) requires a petitioner to obtain prior

authorization from this Court before filing a second § 2254 motion in the district

court. Because Mr. Lucky failed to obtain our authorization, the district court

lacked jurisdiction to decide his motion, and therefore, we must vacate the

district court's order denying the motion. See Lopez, 141 F.3d at 975-76.

Having made this determination, we next construe Mr. Lucky's notice of

appeal and brief on appeal as an implied application for leave to file another

§ 2254 petition in the district court. See Lopez, 141 F.3d at 976. In his

implied

application, Mr. Lucky raises the same sundry federal and state issues he raised

in his April 1997 § 2254 petition, and which the magistrate judge thoroughly

addressed in the Report and Recommendation. In addition, Mr. Lucky also raises

the issue of double jeopardy under the Fifth Amendment because he claims the

state impermissibly tried him three times for the same crime.
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In order to obtain authorization to file a second § 2254 petition in the

district court, Mr. Lucky must make the requisite showing under 28 U.S.C. § 2244(b)(2)(A)-(B). Specifically, Mr. Lucky:

must make a prima facie showing that the grounds set forth are based

on either a new rule of constitutional law made retroactive on

collateral review by the United States Supreme Court that was

previously unavailable or newly discovered evidence, the factual

basis for which could not have been discovered previously through

the exercise of due diligence, and which would be sufficient to

establish by clear and convincing evidence that no reasonable fact

finder would have found the movant guilty of the underlying

offense.

Tapia v. Lemaster, 172 F.3d 1193, 1195 (10th Cir.) (citing 28 U.S.C. § 2244(b)(2)), cert. denied, 120 S. Ct. 192 (1999). In short, Mr. Lucky

must

demonstrate either reliance on a new rule of constitutional law or facts that were

previously undiscoverable and sufficient to establish, by clear and convincing

evidence, he would not have been found guilty of the offense.

Following a review of Mr. Lucky's implied application, we determine his

application does not meet the requirements of § 2244(b)(2)(A)-(B). Specifically,

Mr. Lucky does not allege or show his claims rely on "a new rule of

constitutional law." Section 2244(b)(2)(A). Mr. Lucky also fails to allege or

show that "the factual predicate for the claim could not have been discovered

previously through the exercise of due diligence" and "would be sufficient to

establish by clear and convincing evidence that ... no reasonable factfinder would

have found [him] guilty of the underlying offense." Section 2244(b)(2)(B)(i)-(ii). Thus, we

conclude Mr. Lucky has not made the prima facie showing

necessary to satisfy the requirements under the Antiterrorism and Effective Death

Penalty Act for filing a second habeas application. See § 2244(b)(3)(C).

Accordingly, we VACATE the district court's order denying Mr. Lucky's Rule

60(b)(6) motion and deny Mr. Lucky's implied application for leave to file a

second § 2254 motion in the district court. We further deny Mr. Lucky's motion

to proceed in forma pauperis.

Entered by the Court:

WADE BRORBY

United States Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent except under the doctrines of

law of the case, res judicata and collateral estoppel. The court generally disfavors

the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

1. Some of these motions dealt with the

government's contention Mr. Lucky's

§ 2254 petition was a successive petition because he had previously filed a similar

§ 2254

petition which the district court denied. The magistrate judge determined that although

Mr. Lucky's petition was similar to a prior § 2254 petition filed by Mr. Lucky, it was not

a second or successive petition because it attacked a different conviction and was filed

after Mr. Lucky's third trial, which the other petition did not challenge. The district court

similarly concluded it was not a second or successive petition.

2. As the magistrate judge noted, the state

first tried and convicted Mr. Lucky in

May 1991, after which the trial court granted his motion for a new trial. After the state

tried and convicted Mr. Lucky a second time in October 1991, his conviction was

reversed on direct appeal and a new trial granted. Finally, after a third trial held in May

1995, Mr. Lucky's conviction was affirmed on appeal.

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