Rouse v. United States, 091621 FED8, 20-2007

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtLOKEN, CIRCUIT JUDGE.
JudgeBefore LOKEN, WOLLMAN, and STRAS, Circuit Judges. STRAS, Circuit Judge, concurring in part.
PartiesDesmond Rouse; Jesse Rouse Plaintiffs - Appellants v. United States of America Defendant-Appellee Russell Hubbeling Plaintiff - Appellant v. United States of America Defendant-Appellee
Docket Number20-2007,20-2015
Date16 September 2021

Desmond Rouse; Jesse Rouse Plaintiffs - Appellants


United States of America Defendant-Appellee

Russell Hubbeling Plaintiff - Appellant


United States of America Defendant-Appellee

Nos. 20-2007, 20-2015

United States Court of Appeals, Eighth Circuit

September 16, 2021

Submitted: April 16, 2021

Appeals from United States District Court for the District of South Dakota - Southern Division

Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.


In 1994, after a three-week trial, the jury convicted Desmond and Jesse Rouse, their cousin Russell Hubbeling, and another cousin of sexually abusing five nieces. After a hearing, the district court1 denied defendants' post-trial motion for new trial based on the alleged anti-Native American bias of one juror. On direct appeal, we affirmed the convictions and the denial of a new trial. United States v. Rouse, 111 F.3d 561, 565 (8th Cir.), reconsidering 100 F.3d 560 (8th Cir. 1996), cert. denied, 522 U.S. 905 (1997) ("Rouse I"). In 1999, defendants filed a second motion for new trial alleging that the four victims who testified at trial recanted allegations of sex abuse. See Fed. R. Crim. P. 33(b)(1). The district court denied this motion after a four-day evidentiary hearing, finding "no reasonable probability that the recantations would produce an acquittal if a new trial were held." United States v. Rouse, 329 F.Supp.2d 1077, 1092 (D.S.D. 2004). We again affirmed. United States v. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005) ("Rouse II").

In 1998, Hubbeling filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. The district court denied the motion on the merits; we affirmed. Hubbeling v. United States, 288 F.3d 363 (8th Cir. 2002). Jesse Rouse filed a § 2255 petition in 1998 alleging ineffective assistance of counsel. This petition was dismissed as untimely. Desmond Rouse's § 2255 petition, filed in 2006, was also dismissed as untimely.

In 2018, each defendant applied to this court for authorization to file a second or successive § 2255 motion to vacate or set aside his sentence. See 28 U.S.C. §§ 2244(b)(3), 2255(h). The grounds alleged were (i) "new forensic medical science" establishes their convictions were based on the government's "outdated, false, misleading, and inaccurate" forensic medical evidence, (ii) the "new rule" announced in Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017), will permit them at a new trial to "investigate whether their convictions were based upon overt [juror] racism," and (iii) the now adult victims have again recanted. Therefore, they are entitled to successive habeas relief under McQuiggen v. Perkins, 569 U.S. 383 (2013), because they are "probably actually innocent." We summarily denied the applications.

Represented by the same attorneys, Desmond and Jesse Rouse and Hubbeling (hereafter referred to collectively as "Appellants") returned to the district court and raised these same claims in Rule 60(b)(6) motions seeking relief from the dismissal of their initial § 2255 motions. After argument, the district court denied the Rule 60(b)(6) motions, concluding (i) the Rule 60(b)(6) motions are successive § 2255 motions not authorized by the Eighth Circuit; (ii) even considering the adult recantations and new expert opinions regarding forensic medical evidence, "this Court does not find that the requirements for an actual innocence claim have been satisfied"; and (iii) "[Appellants] have not shown extraordinary circumstances to justify relief under Rule 60(b)(6)." The court granted certificates of appealability regarding whether the Rule 60(b)(6) motions are second or successive § 2255 motions. Desmond and Jesse Rouse and Hubbeling separately appealed. We consolidated the appeals and now affirm.

I. Rule 60(b)(6) Motions by Federal Habeas Petitioners

Federal Rule of Civil Procedure 60(b)(6) authorizes courts to grant relief from final judgments for "any other reason that justifies relief." A Rule 60(b)(6) motion "must be made within a reasonable time." Rule 60(c)(1). A defendant must present "extraordinary circumstances" to justify relief. Davis v. Kelley, 855 F.3d 833, 835 (8th Cir. 2017), quoting Buck v. Davis, 137 S.Ct. 759, 772 (2017). Rule 60(b)(6) extraordinary circumstances "rarely occur in the habeas context." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Appellants argue their new evidence of juror bias and actual innocence creates the extraordinary circumstances necessary for Rule 60(b)(6) relief.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposed significant restrictions on second or successive state habeas corpus applications and their federal counterpart, § 2255 motions for post-conviction relief. See 28 U.S.C. §§ 2244(b), 2255(h); Baranski v. United States, 880 F.3d 951, 954-55 (8th Cir. 2018). Under AEDPA, any claim adjudicated in a prior petition "shall be dismissed," § 2244(b)(1). A claim not previously adjudicated "must be dismissed unless it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence." Gonzalez, 545 U.S. at 530, citing § 2244(b)(2). Though AEDPA did not directly circumscribe Rule 60(b), the Supreme Court held in Gonzalez that the restrictions in § 2244(b) apply to Rule 60(b) motions that present "new claims for relief." Id. at 531. The Court expressly included in this class of Rule 60(b) motions those that "seek leave to present 'newly discovered evidence' . . . in support of a claim previously denied," and those that "contend that a subsequent change in substantive law is a 'reason justifying relief.'" Id. By contrast, no "claim" is presented when a Rule 60(b) motion only attacks "some defect in the integrity of the federal habeas proceedings." Id. at 532; see Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009), cert. denied, 559 U.S. 1051 (2010).

Appellants argue their 60(b)(6) motions are not second or successive § 2255 motions. They contend the motions challenge the procedural bases that precluded prior merits determinations, rather than attacking the merits of the prior decisions. The Rouses claim the denial of their petitions as untimely under AEDPA's one-year statute of limitations was improper in light of McQuiggen. Hubbeling argues his initial § 2255 petition was not resolved on the merits because he was unable to bring evidence that is now admissible under Pena-Rodriguez. We reject these contentions for multiple reasons.

First, as previously noted, the grounds Appellants assert for Rule 60(b) relief -"newly discovered evidence . . . in support of a claim previously denied," and "a subsequent change in substantive law . . . justifying relief" -- fall squarely within the class of Rule 60(b) claims to which the Supreme Court applied § 2244(b) restrictions in Gonzalez. Appellants implicitly admitted as much when they applied to this court for authorization to file second or successive § 2255 motions seeking the same relief. The requirement in § 2244(b)(3) that courts of appeals first certify compliance with § 2244(b)(2) before a district court can accept a motion for second or successive relief applies to Rule 60(b)(6) motions that include second or successive claims. See Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002), cert. denied, 538 U.S. 953 (2003). "[I]nmates may not bypass the authorization requirement of 28 U.S.C. § 2244(b)(3) for filing a second or successive § 2254 or § 2255 action by purporting to invoke some other procedure." United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir.), cert. denied, 545 U.S. 1135 (2005).

Our prior denial of authorization did not sanction Appellants' repackaging of their claims in Rule 60(b)(6) motions to the district court. The motions are improper attempts to circumvent the procedural requirements of AEDPA.2

Second, the juror bias, recantation, and evidentiary issues raised in Appellants' purported Rule 60(b)(6) motions were not raised in their initial § 2255 motions. Those issues were raised in multiple Rule 33 motions for new trial, rejected on the merits by the district court, and affirmed on direct appeal. If Appellants had raised these claims in timely § 2255 motions, they would have been summarily dismissed because "claims which were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255." Davis v. United States, 673 F.3d 849, 852 (8th Cir. 2012) (quotation omitted). Therefore, the fact that the initial § 2255 motions were dismissed as untimely is irrelevant. These are new claims under Gonzalez and are therefore second or successive within the meaning of § 2244(b).

Third, Appellants presumably did not assert their present claims under Rule 33 because Rule 33 motions based on newly discovered evidence are subject to a three-year statute of limitations and require a showing of five factors that are strictly enforced because such motions are viewed with disfavor. See Rule 33(b)(1); Rouse II, 410 F.3d at 1009; United States v. Bell, 761 F.3d 900, 911-12 (8th Cir.), cert. denied, 574 U.S. 1001 (2014). Proceeding instead under § 2255,...

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