Carter v. Rone, Case No. 3:90-cv-00780
| Decision Date | 05 August 2020 |
| Docket Number | Case No. 3:90-cv-00780 |
| Parties | JOHN E. CARTER, Petitioner, v. NEIL RONE, Warden, Respondent. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM AND ORDER
Pending before the court in this habeas corpus action is petitioner John E. Carter's motion for relief from judgment under Rule 60(b)(6) of the Federal Rules of Civil Procedure (Doc. No. 113), which he filed along with an application to proceed as a pauper (Doc. No. 112), a supporting memorandum (Doc. No. 114), and a motion to reappoint counsel (Doc. No. 115). The respondent has filed a response in opposition to the Rule 60(b)(6) motion. (Doc. No. 117.)
The petitioner has attempted in a variety of ways over the last 27 years to win recognition that, as a matter of federal due process, he is entitled to have the Tennessee Supreme Court's 1992 clarification of the deliberation element of first-degree murder in State v. Brown, 836 S. W. 2d 530 (Tenn. 1992), applied to his 1983 conviction for the murder of his grandparents. He has insisted that there was no evidence that he deliberated over the killings he committed with the "cool purpose" that is necessary to establish that statutory element of first-degree murder as interpreted in Brown, and that the state therefore failed to prove deliberation beyond a reasonable doubt.1 He apparently first asserted this argument in a motion to supplement his brief before the Sixth Circuit on appeal from this court's February 1993 denial of his petition in this action under 28 U.S.C. § 2254. (See Doc. No. 113 at 8-9.) The Sixth Circuit denied his motion to supplement and, in December 1993, affirmed the denial of his habeas petition without mentioning Brown. Carter v. Rone, 12 F.3d 211, 1993 WL 498200 (6th Cir. Dec. 2, 1993).
The petitioner filed his first Rule 60(b)(6) motion in this case on March 28, 2005. (Doc. No. 45.) The court construed that motion as a request to file a second or successive petition under Section 2254 and forwarded it to the Sixth Circuit. (Doc. No. 49.) The Sixth Circuit denied the request (Doc. No. 61), dismissing the petitioner's argument that "his convictions were based on prior erroneous interpretations of state law by the Tennessee Supreme Court" and "now violate the Due Process Clause." (Id. at 2.) The petitioner's second Rule 60(b)(6) motion (Doc. No. 63, filed on January 30, 2006) was noted by this court to cite the same authority and raise the same claims using the same arguments as his first motion, and was therefore denied as untimely, as was histhird Rule 60(b)(6) motion (Doc. No. 69, filed on July 12, 2006). (See Doc. Nos. 67 & 72.) The court deemed it unnecessary to forward the petitioner's second and third motions, raising the same or similar arguments as his first, to the Sixth Circuit for consideration as second or successive habeas petitions. (See id.) The Sixth Circuit affirmed this court's denial of relief on timeliness grounds. (See Doc. No. 85 at 2.)
On the same day that he filed his second Rule 60(b)(6) motion in this case, January 30, 2006, the petitioner also filed a second petition under Section 2254 in this court. See Carter v. Carlton, No. 2:06-cv-00012 (M.D. Tenn.) (Haynes, J.). Counsel was appointed for the petitioner, though the court ultimately transferred the matter to the Sixth Circuit, which denied authorization to file a second or successive habeas petition. (Case No. 2:06-cv-00012, Doc. No. 24.) The petitioner subsequently filed his third and final habeas petition in Carter v. Sexton, No. 2:12-cv-00029 (M.D. Tenn.) (Sharp, J.). The petitioner proceeded pro se and achieved the familiar result of having his case transferred to the Sixth Circuit, which denied authorization to file the second or successive petition. (Case No. 2:12-cv-00029, Doc. No. 28.)
In this, the fourth Rule 60(b)(6) motion in his original habeas proceeding under 28 U.S.C. § 2254, the petitioner bases his argument for the application of Brown upon the U.S. Supreme Court's decisions in Bousley v. United States, 523 U.S. 614 (1998), Fiore v. White, 531 U.S. 225 (2001), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). (See Doc. No. 113 at 22-25.) He states that, "[s]ince Brown, [he] has attempted to have Brown applied to his case in at least 13 separate . . . proceedings that were denied on procedural rulings inconsistent with Montgomery, Fiore, and the Federal Due Process Clause,"2 showing that he "has been especially diligent inseeking application of the Brown clarification to his pre-Brown final convictions." (Id. at 2.) In an affidavit supporting his motion, the petitioner describes the prelude to this most recent attempt to reopen his habeas case:
(Doc. No. 113-7 at 2-3.) The petitioner claims that his research in the wake of the Sixth Circuit's decision in Carter v. Slatery eventually led him to the realization, on September 6, 2019, that "he might have a Rule 60(b)(6) claim under Montgomery." (Doc. No. 113 at 30 (emphasis in original).) He filed the instant motion on December 12, 2019.
To begin with, the court must determine whether it has jurisdiction to consider the petitioner's Rule 60(b)(6) motion, or whether that motion should be treated as a second or successive habeas application that the Sixth Circuit must first authorize under 28 U.S.C. § 2244(b). Tyler v. Anderson, 749 F.3d 499, 506 (6th Cir. 2014) (). Id. (quoting Gonzalez v. Crosby, 545 U.S. 524, 530, 532 (2005)).
The instant motion does not assert any ground for relief that could be characterized as new, nor does it attack this court's previous resolution of the underlying Section 2254 petition. Rather, the petitioner continues to assert the same, due process-based argument under Fiore, et al., that he asserted in his previous Rule 60 motions. (Cf. Doc. No. 113 at 22-24 () with Doc. No. 63 at 15 ( "the Bousley/Fiore doctrine") and Doc. No. 69 at 22 ().) Although he updates his argument to include Montgomery v. Louisiana and its holding "that when a new substantive rule of constitutional law controls theoutcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule," 136 S. Ct. at 729, his central contention continues to be that Brown announced a new substantive rule of law and that it would be "inconsistent with the doctrinal underpinnings of habeas review" to preclude him from relying on Brown in seeking to reopen his case. (Doc. No. 113 at 23-25.) The Sixth Circuit has already declined to authorize a second or successive habeas petition based on the petitioner's claim that he was unconstitutionally convicted under the "prior erroneous interpretations of state law by the Tennessee Supreme Court" that gave way to Brown. (Doc. No. 61 at 2.) Accordingly, as before, this court finds it proper to consider the petitioner's Rule 60(b)(6) motion.
Rule 60(b)(6)—the catchall provision governing relief from a final judgment for "any other reason that justifies relief"—applies only in "exceptional or extraordinary circumstances where principles of equity mandate relief," which "rarely occur in the habeas context." Miller v. Mays, 879 F.3d 691, 698 (6th Cir. 2018) (citations and internal quotation marks omitted). Even if such circumstances arguably exist, to be considered, a motion under this subsection must be filed "within a reasonable time." Fed. R. Civ. P. 60(c)(1). "A reasonable time depends on the factual circumstances of each case, and a moving party must articulate a reasonable basis for delay." Tyler, 749 F.3d at 510 (internal citations omitted).
While the reasonableness determination considers diligence in seeking relief, Miller, 879 F.3d at 699, the petitioner's diligence over the decades in seeking relief based on Brown does not provide any basis for finding his Rule 60(b)(6) motion timely, as it has been definitively established as the law of this...
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