Majors v. Sexton

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

CRAIG O. MAJORS, )

)

Petitioner, )

)

v. ) NO. 3:13-cv-00543

)

DAVID SEXTON, )

)

Respondent. )

MEMORANDUM OPINION

Craig Majors, an inmate at the South Central Correctional Facility in Clifton, Tennessee,

has filed a pro se Motion for Relief from Judgment (Doc. No. 68) under Rule 60(b)(6) of the

Federal Rules of Civil Procedure, asking the Court to reconsider its 2013 denial of the writ of

habeas corpus in this case. As explained below, this Motion will be transferred to the United States

Court of Appeals for the Sixth Circuit for consideration as a second or successive habeas petition.

I. BACKGROUND

On April 29, 2013, Petitioner filed a pro se Petition for the Writ of Habeas Corpus pursuant

to 28 U.S.C. § 2254 (Doc. No. 1) and a supporting Memorandum (Doc. No. 2). Petitioner asserted

that his state convictions were obtained in violation of his constitutional rights because his counsel

was ineffective in a variety of ways and his due process rights were violated. Petitioner’s due

process claim––which is the focus of his current Rule 60(b)(6) Motion––“assert[ed] that his

convictions for both especially aggravated kidnapping and attempted aggravated robbery violate

due process because the kidnapping [was] ‘essentially incidental’ to the robbery,” and thus should

not have resulted in a separate conviction according to a subsequent, clarifying interpretation of

the Tennessee kidnapping statute by the Tennessee Supreme Court. (Doc. No. 1 at 77–78).

In his supporting Memorandum, Petitioner explained that in 2012, two years after his

convictions were upheld by the Tennessee Court of Criminal Appeals, the Tennessee Supreme

Court issued its decision in State v. White, 362 S.W.3d 559 (Tenn. 2012), in which it held that the

kidnapping statute did not apply to removal or confinement of a victim that was “essentially

incidental” to an accompanying robbery. In so holding, the Tennessee Supreme Court expressly

overruling its decisions in two prior cases that the Court of Criminal Appeals had applied in

Petitioner’s case, State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), and State v. Dixon, 957 S.W.2d

532 (Tenn. 1997). Petitioner argued that “his conviction violates the Due Process Clause of the

Federal Constitution (and Tennessee Constitution), as interpreted in Fiore v. White, 531 U.S. 225,

121 S. Ct. 712 [(2001)] and its progeny, because he was convicted under an incorrect interpretation

of the law” that excused the State from its burden of proving to the jury that the kidnapping was

not incidental to the robbery. (Doc. No. 2 at 105–08).

In a decision by District Judge Todd Campbell (Ret.), the Court denied the Petition. It

explained that although the state courts had relied on Anthony and Dixon in affirming Petitioner’s

convictions, and those decisions had been overruled by State v. White, the court in White expressly

noted that its decision did not articulate a new constitutional rule or require retroactive application,

and the Court of Criminal Appeals had “expressly considered whether the kidnapping was merely

‘incidental’ to the robbery such that dual convictions would offend due process.” (Doc. No. 28 at

11–14 & n.3).1 The Court further noted as follows:

The procedure embraced in White clearly offers better due-process protections than

the procedure still in use at the time of Majors’ appeal, insofar as White now

requires the jury to resolve the question of whether the kidnapping in a given case

was merely incidental to an accompanying felony charge. However, the petitioner

here did not appeal the jury instructions given in his case or raise an express

sufficiency-of-the-evidence challenge based on the elements of the kidnapping

conviction, nor did he assert that his counsel was ineffective for failing to raise

these arguments. These arguments therefore are now foreclosed to him. Regardless,

the standard for this Court is whether the conviction violated federal due-process

standards, not whether it comported with state law.

(Id. at 13 n.3). The Court found that “the Tennessee court’s rejection of the claim was not contrary

to and did not involve an unreasonable application of clearly established federal law, nor did it

result in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” as required to justify habeas relief under Section

2254(d). (Id. at 13). Petitioner appealed this decision to the Sixth Circuit Court of Appeals, but the

Sixth Circuit denied a certificate of appealability and dismissed the appeal. (Doc. No. 47).

1 The Anthony decision required appellate courts considering the sufficiency of the evidence to

support convictions for kidnapping and an additional felony to inquire whether “the confinement,

movement, or detention” supporting the kidnapping offense was “essentially incidental” to the

accompanying crime “or whether it [was] significant enough . . . to warrant independent prosecution and .

. .[,] therefore, sufficient to support such a conviction.” Anthony, 817 S.W.2d at 306. The Dixon decision

modified the requirement established in Anthony.

In White, the Tennessee Supreme Court did away with the requirement that appellate courts apply

this “separate due process test,” in light of its conclusion “that whether the evidence, beyond a reasonable

doubt, establishes each and every element of kidnapping, as defined by statute, is a question for the jury

properly instructed under the law.” 362 S.W.3d at 577–78. It clarified that trial courts have the obligation

to “ensure that juries return kidnapping convictions only in those instances in which the victim’s removal

or confinement exceeds that which is necessary to accomplish the accompanying felony,” while

emphasizing “that since our 1991 decision in Anthony, convictions for kidnapping have been precluded

when the victim’s movement or confinement was essentially incidental to another felony.” Id. at 578.

Accordingly, the decision in White did not “creat[e] a new standard for kidnapping,” but “merely provid[ed]

definition for the element of the offense requiring that the removal or confinement constitute a substantial

interference with the victim’s liberty.” Id.

While simultaneously pursuing additional remedies in state court,2 Petitioner filed his first

Rule 60(b)(6) motion for relief from this Court’s judgment on February 5, 2015 (Doc. No. 49),

arguing that the Court erred in finding procedural default on an ineffective-assistance claim and

that counsel was ineffective for failing to adequately argue that the kidnapping conviction violated

due process. (Id. at 17–25). The Court found that the part of Petitioner’s Rule 60(b)(6) motion

dealing with procedural default was properly before it and denied relief. However, the Court found

that the claim related to due process had been presented as a wholly new claim of ineffective

assistance––apart from the original, “substantive claim based on the denial of due process”––and

therefore had to be transferred to the Sixth Circuit for consideration as an application for

permission to file a second or successive habeas petition. (Doc. No. 53 at 8; Doc. No. 54). Two

months later, Petitioner sought reconsideration of this decision, asking that the Court construe his

due process argument as one seeking relief from judgment based on the denial of due process that

resulted from the “change[ ] [in] the law” effected by White. (Doc. No. 60 at 6–9). His motion for

reconsideration concluded by asserting that “[t]he state Supreme Court’s decision in White, which

expressly overruled its prior holding [in cases applied] on Majors[’s] direct appeal and changed

the scope of kidnapping under state law, presents an unusual circumstance[ ] that . . . supports

reconsideration[.]” (Id. at 9).

The Court construed Petitioner’s motion for reconsideration as a second motion for relief

from judgment, part of which was appropriately resolved under Rule 60(b) because it asserted an

error affecting the Court’s procedural default analysis. (Doc. No. 61 at 3–4). But the part of the

motion dealing with Petitioner’s due process argument was transferred to the Sixth Circuit for

consideration as a successive habeas claim because it “reassert[ed] a claim previously raised and

2 See Majors v. State, No. E2015-00400-CCA-R3-HC, 2015 WL 5656340 (Tenn. Crim. App. Sept.

25, 2015).

ask[ed] for consideration or reconsideration of this claim on the merits.” (Id. at 4, 6–7; Doc. No.

62).

In a corrected motion before the Sixth Circuit, Petitioner admitted that he had raised his

due process claim in his initial habeas petition but argued that the matter should be revisited

because the Tennessee Supreme Court had expressly overruled the cases that allowed for his dual

convictions. (See Doc. No. 67 at 2). The Sixth Circuit denied leave to file a second or successive

habeas petition raising this claim, as follows:

As an initial matter, because Majors raised his due process argument in his prior

habeas petition, that claim is subject to dismissal. See 28 U.S.C. § 2244(b)(1). To

the extent that Majors argues that he is raising a “new” claim based on the

Tennessee Supreme Court’s decision in State v. White, 362 S.W.3d 559 (Tenn.

2012), his claim is not based on a new rule of constitutional law made retroactively

applicable by the United States Supreme Court, nor is it based upon newly

discovered evidence. See 28 U.S.C. § 2244(b)(2). White was decided before Majors

filed his initial habeas petition in any event.

* * *

Finally, Majors seeks to raise a new claim of actual innocence based on White. But

White does not constitute newly discovered evidence of Majors’s actual, factual

innocence, nor did it announce a new rule of constitutional law declared

retroactively applicable by the United States Supreme Court. See 28 U.S.C.

§ 2244(b)(2); Bousley v. United States, 523 U.S. 614, 623 (1998).

(Id. at 2–3). The Sixth Circuit’s order was filed on July 12, 2016.

Four years later, on August 25, 2020, Petitioner filed the pending Motion for Relief from

Judgment under Rule 60(b)(6). (Doc. No. 68).

II. ANALYSIS

Petitioner argues that this habeas action should be reopened because the Court “erred as a

matter of law by relying on the overruled State v. Dixon and State v. Anthony case[s]” to adjudicate

his due process claim. (Doc. No. 68 at 1). He argues that this error represents “a clear defect in the

integrity of [his] prior federal habeas corpus proceeding, which falls squarely into the gap of a true

Rule 60(b)(6) motion, entitling him to reconsideration of his due process claim.” (Id.) Petitioner

believes that this motion should “be treated as a true 60(b) motion, not as another habeas petition,

[because] it challenges a denial of an earlier petition that rested on repealed or overruled state law.

(Id. at 4 (citing Robertson v. Walker, 543 F. App’x 722 (9th Cir. 2013), and Cincinnati Ins. Co. v.

Byers, 151 F.3d 574 (6th Cir. 1998)). He argues that the Court should exercise its jurisdiction

under Rule 60(b)(6) to reopen the matter and remedy its denial of his due process claim, which he

believes should succeed under the Supreme Court’s rationale in Fiore and Bunkley v. Florida, 538

U.S. 835 (2003). (Doc. No. 68 at 8–12).

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). “When faced

with a Rule 60(b) motion filed in response to the denial of an application for habeas relief, the

district court must first determine whether the petitioner is only seeking Rule 60(b) relief or is

attempting to file a second or successive habeas application.” Webb v. Davis, 940 F.3d 892, 897

(5th Cir. 2019) (citing Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005)). The Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) limits the circumstances under which a state

prisoner may file a second or successive application for habeas relief, and requires that the prisoner

first “move in the appropriate court of appeals for an order authorizing the district court to

consider” a second or successive habeas application. 28 U.S.C. § 2244(b)(3)(A). “A motion under

Rule 60(b) may be treated as a second or successive habeas petition if necessary to enforce the

requirements of the AEDPA.” Tyler v. Anderson, 749 F.3d 499, 506 (6th Cir. 2014). That necessity

arises when the motion “asserts a ‘federal basis for relief from the state court’s judgment of

conviction,’ by ‘seek[ing] to add a new ground for relief’ or ‘attack[ing] the federal court’s

previous resolution of a claim on the merits.’” Id. (quoting Gonzalez, 545 U.S. at 530, 532).

The instant Motion does not assert any ground for relief that could be characterized as new

but attacks this Court’s previous resolution of the underlying due process claim. Petitioner attempts

to frame his attack on the Court’s prior, merits-based resolution of his due process claim as one

based on an error that compromised the integrity of the habeas proceeding. But the cases he cites

to support the applicability of Rule 60(b) in such a scenario, Cincinnati Ins. Co. v. Byers and

Robertson v. Walker, reached this determination out of an equitable concern that the decision under

attack had been made without the court’s even knowing that the applicable state law had been

overruled. See Byers, 151 F.3d at 579 (“Unless relief from the judgment is granted to CIC pursuant

to Rule 60(b)(6), it will lose the right to assert its . . . theory simply because the district court

fortuitously ruled one day before the submission of the supplemental memorandum [advising the

court of the change in law].”); Robertson, 543 F. App’x at 723 (vacating and remanding a decision

construing a Rule 60(b) motion as second or successive because the decision rested on California

law that was overruled one day prior to the issuance of the court’s mandate).

Such extraordinary circumstances do not exist in this case. The instant Motion merely

asserts that this Court erred in determining that the state courts’ use of procedures prescribed by

cases that were subsequently overruled did not provide grounds for granting habeas relief on

Petitioner’s due process claim. Petitioner first made that claim in 2013, in his original Petition and

supporting Memorandum, utilizing largely the same arguments and authorities that he asserts in

the instant Motion. In the judgment from which Petitioner seeks relief, the Court discussed the

effect of the 2012 Tennessee Supreme Court decision in White and determined that, regardless of

the new procedures embraced in that decision, Petitioner’s federal due process rights had not been

violated by his 2008 conviction under the procedures prevailing at that time. (See Doc. No. 28 at

11–14 & n.3). The allegation of error in this Court’s reasoning does not amount to an extraordinary

circumstance permitting relief from judgment under Rule 60(b)(6), but must be construed as a

habeas claim, “since alleging that the court erred in denying habeas relief on the merits is

effectively indistinguishable from alleging that the movant is, under the substantive provisions of

the statutes, entitled to habeas relief.” Gonzalez, 545 U.S. at 532.

In sum, though nominally filed under Rule 60(b)(6) based on the “extraordinary

circumstances” presented by this Court’s erroneous reliance on Tennessee cases that were no

longer good law, Petitioner’s Motion “is in substance a successive habeas petition” reasserting his

previously rejected due process claim, “and should be treated accordingly.” Id. at 531.

Alternatively, even assuming for the sake of argument that Petitioner’s Motion could

properly be considered under Rule 60(b), Petitioner would not be entitled to relief in this Court. A

Rule 60(b) motion must be filed “within a reasonable time,” and for reasons including a substantive

legal mistake under subsection (b)(1), “no more than a year after the entry of the judgment[.]” Fed.

R. Civ. P. 60(c)(1). Even if the Motion is properly filed under the catchall of subsection (b)(6)

rather than to correct a mistake under subsection (b)(1), and is thus not bound by a strict one-year

limitations period, “[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). Given the circumstances of this case, where nearly seven years elapsed between

the Court’s December 2013 judgment in this habeas action and the filing of the instant Motion in

August 2020, and four years passed without any additional activity following the Sixth Circuit’s

most recent order in 2016, it is clear that the Motion was not filed within a reasonable time. See

id. (examining timeliness “assuming arguendo that Tyler’s motion relating to the deliberation

instruction is specifically cognizable under Rule 60(b)(6) and not barred by § 2244(b)’”) (citing,

e.g., West v. Champion, 363 F. App’x 660, 664 (10th Cir. 2010) (holding Rule 60(b)(6) motion

filed more than eight years after district court’s judgment on habeas petition “is not within the

‘reasonable time’ contemplated by Rule 60(c)(1)”); see also Moore v. United States, No. 3:05-cv-

00805, 2013 WL 3778716, at *3 (M.D. Tenn. July 18, 2013) (‘Moore filed his Rule 60(b) motion

seven and a half years after the court denied his § 2255 motion. The motion therefore is late [under

either subsection (b)(1) or (b)(6)].”); Brown v. United States, No. 5:00CV1650, 2008 WL

5055656, at *5 (N.D. Ohio Nov. 20, 2008) (finding untimely a motion for post-judgment relief

filed “‘a full four years subsequent to the completion of [most recent] appellate process”).

I. CONCLUSION

Petitioner’s attack on this Court’s ruling on the merits of his due process claim is not

properly presented as a Rule 60(b) motion but is a successive habeas claim requiring Sixth Circuit

authorization to pursue. 28 U.S.C. § 2244(b)(3)(A). Accordingly, the Motion will be transferred

to the Sixth Circuit.

An appropriate Order will enter.

CHIEF UNITED STATES DISTRICT JUDGE