Delmart E.J.M. Vreeland v. Zupan
| Docket Number | Civil Action 14-cv-02175-PAB |
| Decision Date | 24 August 2023 |
| Parties | DELMART E.J.M. VREELAND, II, Applicant, v. DAVID ZUPAN, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. |
| Court | U.S. District Court — District of Colorado |
This Matter is before the Court on applicant's Motion for Relief from Judgment Pursuant to Fed.R.Civ.P. 60(b)(6) Based upon Extraordinary Circumstances [Docket No. 126] (the “First Rule 60(b) Motion”), Motion for Relief and to Vacate Judgment Pursuant to Fed.R.Civ.P. 60(b) [Docket No 129] (the “Second Rule 60(b) Motion”), Motion for Release on Bail Pending Litigation of Motion for Relief from Judgment based upon Extraordinary Circumstances Motion for Relief and to Vacate Judgment Pursuant to Fed.R.Civ.P. Rule 60(b) New Application for Habeas Corpus Relief Under 28 U.S.C. 2254 or U.S.C. 2241 and/or any Appellate Proceedings Relevant to any of the Above Litigation [Docket No. 131] (the “Bail Motion”), and Motion to Chief Judge P.A. Brimmer to Take Judicial Notice of Attached Public Record Photographic Evidence in Support of Motion for Relief from Judgment (ECF 126) and Motion for Release on Recognizance Bail [Docket No. 132] (the “Judicial Notice Motion”). Respondents filed a response to applicant's First Rule 60(b) Motion, Docket No. 137, and a combined response to applicant's Second Rule 60(b) Motion and Bail Motion. Docket No. 138. Applicant filed a combined reply in support of his First Rule 60(b) Motion and his Second Rule 60(b) Motion, Docket No. 147,[1]and a reply in support of his bail motion. Docket No. 146.
Applicant is a prisoner in the custody of the Colorado Department of Corrections. See Docket No. 126 at 12. On August 6, 2014, applicant initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his criminal conviction in Case No. 04CR706 in the District Court for Douglas County, Colorado. Docket No. 1 at 1-2. On September 29, 2014, pursuant to court order, see Docket No. 5 at 2, applicant filed an amended application, which asserted thirty-two claims, of which one had five subparts. Docket No. 8. On December 21, 2015, the Court dismissed claims six through nine, eleven through twenty-six, subpart (a) of twenty-seven, twenty-nine, and thirty as procedurally barred from federal habeas review; claims four, thirty-one, and thirty-two because they are not cognizable in a federal habeas action; and subparts (b)-(e) of claim twenty-seven and claim twenty-eight as unexhausted. Docket No. 46 at 19-20. The Court ordered respondents to file an answer that fully addressed the merits of the remaining claims one through three, five, and ten. Id. at 20. Upon review, the Court denied the application, dismissed the action with prejudice, and found no basis to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c) because each remaining claim lacked merit. Docket No. 75.
Applicant filed a Notice of Appeal. Docket No. 77. The United States Court of Appeals for the Tenth Circuit (1) affirmed the Court's denial of relief on applicant's Sixth Amendment claim and (2) denied applicant's certificate of appealability on his due process and actual innocence claims, which resulted in the dismissal of the remainder of the appeal. Vreeland v. Zupan, 906 F.3d 866 (10th Cir. 2018). On February 19, 2019, applicant petitioned the U.S. Supreme Court for certiorari review. Docket No. 90. That petition was denied on April 15, 2019. See Docket No. 91.
On June 14, 2019, applicant filed a motion under Fed.R.Civ.P. 60(b) and (d) arguing that the Court's order denying applicant's habeas petition was corrupted by applicant's attorney and respondents' attorney not providing relevant evidence. Docket No. 102 at 1-2, ¶¶ 3, 5. The Court denied applicant's motion, ruling it was a successive habeas petition that the Court did not have jurisdiction to consider. Docket No. 103 at 5. Applicant appealed the Court's order on his Rule 60(b) and (d) motion. Docket No. 104. On January 24, 2020, the Tenth Circuit denied applicant's request for a certificate of appealability. Docket No. 116 at 9.
On November 14, 2022, applicant filed a motion in the Tenth Circuit seeking authorization to file a successive habeas petition. Docket No. 124-1. On December 5, 2022, the Tenth Circuit denied applicant's motion for authorization. Docket No. 125. Applicant subsequently filed his First Rule 60(b) Motion on December 28, 2022, his Second Rule 60(b) Motion, Bail Motion, and Judicial Notice Motion on January 23, 2023. Docket Nos. 126, 129, 131, and 132.
Applicant has filed two motions under Federal Rule of Civil Procedure 60(b). Docket Nos. 126 and 129. Applicant's First Rule 60(b) Motion requests “an order granting relief from judgment pursuant to Fed.R.Civ.P. Rule 60(b)(6) and allow Petitioner to either amend a past jurisdictional claim, or to amend to present a jurisdictional claim, and/or for whatever relief this Court can provide consistent with law and Constitution.” Docket No. 126 at 12. Applicant's Second Rule 60(b) Motion states “two additional issues were discovered” after he filed his first Rule 60(b) Motion and requests “an order vacating the final judgment” in this case finding that the judgment is void. Docket No. 129 at 2, 5.
The Supreme Court has ruled a Rule 60(b) motion is appropriately characterized as a second or successive § 2255 motion if it attacks a federal court's denial of habeas relief on the merits. Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). A motion is a proper Rule 60(b) motion if, instead of questioning the merits of a previous order, it “challenges only a procedural ruling of the habeas court which precluded a merits determination of the habeas application, . . . or []challenges a defect in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition.” Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006) (citing Gonzalez, 545 U.S. at 532 n.4). If the court determines a motion is a second or successive habeas motion, the court must either dismiss the motion without prejudice or transfer the motion to the Tenth Circuit pursuant to 28 U.S.C. § 1631. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). The court may not rule on a successive § 2255 claim unless authorized by the Tenth Circuit. See id. at 1252. If, however, a court determines a motion is a proper Rule 60(b) motion, it can rule on the merits. Spitznas, 464 F.3d at 1215-16.
Rule 60(b) states that a court may relieve a party from final judgment under certain limited circumstances. Fed.R.Civ.P. 60(b). Relief after judgment is discretionary and only appropriate for “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.” Id. A Rule 60(b) motion must be made within a reasonable time, and motions made under Rule 60(b)(1)-(3) must be filed within one year of the entry of judgment. Fed.R.Civ.P. 60(c).
Because such relief is “extraordinary and may only be granted in exceptional circumstances,” Servants of the Paraclete v. John Does, 204 F.3d 1005, 1009 (10th Cir. 2000), parties seeking relief under Rule 60(b) have a high hurdle to overcome; a Rule 60(b) motion should not be treated as a substitute for an appeal. Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005). Rule 60(b)(6) has been described as a “grand reservoir of equitable power to do justice in a particular case.” Pierce v. Cook & Co., Inc., 518 F.2d 720, 722 (10th Cir. 1975) (en banc) (citation omitted). Relief under Rule 60(b)(6) is appropriate when circumstances are so “unusual or compelling” that extraordinary relief is warranted or when it “offends justice” to deny such relief. Cashner v. Freedom Stores, Inc., 98 F.3d 572, 580 (10th Cir. 1996). “Rule 60(b)(6) relief may not be premised on one of the grounds enumerated in clause (b)(1) through (b)(5)).” Spitznas, 464 F.3d at 1225 n.11 (citing State Bank of S. Utah v. Gledhill (In re Gledhill), 76 F.3d 1070, 1080 (10th Cir. 1996)). Servants of the Paraclete, 204 F.3d at 1012.
Applicant's First Rule 60(b) Motion states that, in his original application, “Petitioner's counsel chose to proceed with exhausted claims only; having no clue, by no fault of his own, that as the state court proceeded in absence of jurisdiction there was an argument to be made as to a waiver of exhaustion rule.” Docket No. 126 at 8. Applicant claims he received court materials in 2022 that revealed a motion he made in his criminal case arguing that the court lacked jurisdiction over non-financial charges. Id. at 2. Applicant claims he uncovered telephone calls that demonstrate his attorney hid his...
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