# Mcgee v. Director, TDCJ-CID

> District Court, N.D. Texas · January 2, 2025

URL: https://www.frixlaw.com/law-library/cases/10773393

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** January 2, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10773393

## How later opinions describe it (automated extraction)

- holding unexhausted claims procedurally barred
- holding petitioner to have procedurally defaulted by failing to “fairly present” claim to state courts in his state habeas application
- concluding that Rule 60(b) motion was not successive petition when it challenged the district court’s determination that the claims were procedurally defaulted
- noting that relief under Rule 60(b) is an extraordinary remedy and that the desire for a predictable judicial process cautions against reopening judgments

## Opinion text

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

RICKEY L. MCGEE §
TDCJ No. 2173658, §
§
Petitioner, §
§
v. § Civil Action No. 3:20-CV-1415-X-BN
§
DIRECTOR, TDCJ-CID, §
§
Respondent. §

MEMORANDUM OPINION AND ORDER

Before the Court are Petitioner Rickey L. McGee’s motions to reopen (Docs.
87, 93) and a motion to for an evidentiary hearing (Doc. 94). Having considered the
motions, the Court DENIES McGee’s Rule 60(b) motions as meritless as to the
procedurally defaulted claims. With respect to the claims that were denied on the
merits, the Rule 60(b) motions are successive § 2254 motions in disguise, and, as
such, are DISMISSED WITHOUT PREJUDICE to McGee’s ability to seek leave
to file a successive application from the United States Court of Appeals for the Fifth
Circuit.1 (Docs. 87, 93). And the Court FINDS AS MOOT McGee’s motion for an
evidentiary hearing. (Doc. 94).
I. Background
McGee, a Texas prisoner, was convicted by a jury in Dallas County on two
counts of aggravated robbery with a deadly weapon, enhanced with two prior felony

1 See 28 U.S.C. § 2244(b)(3); 28 U.S.C. § 2255(h).
convictions.2 After the state courts denied his appeal and habeas applications, he
filed a federal habeas petition in this Court under 28 U.S.C. § 2254.3 The Court,
accepting the recommendation of the United States Magistrate Judge, denied

McGee’s federal habeas application on February 28, 2022.4
On November 1, 2022, McGee filed his first motion for relief from the
judgment under Federal Rule of Civil Procedure 60(b).5 The Court denied the
motion a few months later, and the United States Court of Appeals for the Fifth
Circuit denied McGee’s request for a certificate of appealability.6
On September 23, 2023, McGee filed a second motion for relief from the

judgment under Rule 60(b), and, on February 13, 2024, he filed a third such motion,
which is substantially similar to the second.7 The Court denied the two motions.8
McGee appealed the denial and filed a fourth motion under Rule 60(b) on July 24,
2024, and a fifth on September 20, 2024.9 The Fifth Circuit dismissed McGee’s
appeal for want of prosecution.10 His fourth and fifth motions for reconsideration,
along with a motion for an evidentiary hearing,11 are now pending before the Court.

2 See State v. McGee, F-1634499-H, F-1634511-H (Crim. Dist. Ct. No. 1, Dallas Cnty.).
3 Doc. 3.
4 See Docs. 40, 44, 47, 48.
5 Doc. 61.
6 Docs. 66, 70, 81.
7 Docs. 82, 83.
8 Doc. 86.
9 Docs. 87, 93.
10 Doc. 96.
11 Doc. 94.
II. Analysis
A. McGee fails to show that he is entitled to relief from judgment.

McGee claims that his motions for relief from judgment fall under Federal
Rule of Civil Procedure 60(b).12 As with his three prior post-judgment motions, the
threshold question is whether the Rule 60(b) motions are unauthorized successive
petitions that the Court lacks jurisdiction to consider absent prior authorization
from the Fifth Circuit.
“A state prisoner is entitled to one fair opportunity to seek federal habeas
relief from his conviction. But he may not usually make a ‘second or successive

habeas corpus application.’”13 If an application is a “second or successive petition”
the district court cannot consider it without authorization from the United States
Court of Appeals for the Fifth Circuit under 28 U.S.C. § 2244(b)(3).
“Because of the comparative leniency of Rule 60(b), petitioners sometimes
attempt to file what are in fact second-or-successive habeas petitions under the
guise of Rule 60(b) motions.”14 “A federal court examining a Rule 60(b) motion
should determine whether it either: (1) presents a new habeas claim (an ‘asserted

federal basis for relief from a state court’s judgment of conviction’), or (2) ‘attacks
the federal court’s previous resolution of a claim on the merits.’”15 “If the Rule 60(b)

12 Docs. 87 at 2 and 93 at 1.
13 Bannister v. Davis, 590 U.S. 504, 507 (2020) (quoting 28 U.S.C. § 2244(b)).
14 In re Edwards, 865 F.3d 197, 203 (5th Cir. 2017) (citing Gonzalez v. Crosby, 545 U.S. 524,
531–32 (2005); In re Jasper, 559 F. App’x 366, 370 (5th Cir. 2014)).
15 In re Edwards, 865 F.3d at 203 (citing Gonzalez, 545 U.S. at 530, 532) (emphasis added).
motion does either, then it should be treated as a second-or-successive habeas
petition and subjected to the AEDPA’s limitation on such petitions.”16
A federal court resolves the claim on the merits when it
determines that there are or are not “grounds entitling a
petitioner to habeas corpus relief under 28 U.S.C.
§§ 2254(a) and (d),” as opposed to when a petitioner
alleges “that a previous ruling which precluded a merits
determination was in error—for example, a denial for
such reasons as failure to exhaust, procedural default, or
statute of limitations bar.”17
McGee’s federal habeas application contained several ineffective assistance of
counsel claims, a Fourth Amendment violation claim, a Sixth Amendment speedy
trial claim, a sufficiency of the evidence claim, and several prosecutorial misconduct
claims.18 The Court found that some of McGee’s ineffective assistance of counsel
and prosecutorial misconduct claims were procedurally defaulted, as was his
insufficiency of the evidence claim, but it otherwise addressed the merits of his
claims.19
McGee’s fourth and fifth Rule 60(b) motions attack this Court’s finding that
he procedurally defaulted on claims for ineffective assistance of counsel,
prosecutorial misconduct, and insufficient evidence.20 Because such allegations
attack “not the substance of the federal court’s resolution of claims on the merits,

16 Id. at 204 (citing 28 U.S.C. § 2244(b); Gonzalez, 545 U.S. at 531–32; In re Sepulvado, 707
F.3d 550, 552 (5th Cir. 2013)).
17 Id. (citing Gonzalez, 545 U.S. at 532 n. 4).
18 See generally Doc. 40 (discussing all of McGee’s claims).
19 See id.
20 See, e.g., Doc. 87 at 2–4.
but some defect in the integrity of the federal habeas proceeding,” they are not
successive, and McGee can raise them under Rule 60(b).21
Turning to the merits of the Rule 60(b) motions, 60(b) provides that:

On motion and just terms, the court may relieve a party . . . from a
final judgment, order, or proceeding for the following reasons:
(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), 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.

“The purpose of Rule 60(b) is to balance the principle of finality of a judgment
with the interest of the court in seeing that justice is done in light of all the facts.”22
“The burden of establishing at least one of the Rule 60(b) requirements is on
[McGee] as the movant.”23 Such motions “must be made within a reasonable time—
and for reasons (1), (2), and (3) no more than a year after the entry of the judgment
or order of the date of the proceeding.”24 Here, McGee appeals to Rule 60(b)(3), (4),
and (6).

21 Gonzalez, 545 U.S. at 532; see also Holley v. Terrell, Civil Action No. 10-1787, 2013 WL
2243835, at *2 (E.D. La. May 21, 2013) (“Thus, for example, challenges to dismissal of prior habeas
petitions on grounds of procedural default, time bar, or failure to exhaust, are not challenges to
dismissal on the merits, should not be construed as improper habeas petitions, and are properly
before the district court.”); Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012) (concluding that Rule
60(b) motion was not successive petition when it challenged the district court’s determination that
the claims were procedurally defaulted).
22 Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005) (cleaned up).
23 Bashhoon v. Wells Fargo Bank, NA, No. 3:12-cv-2017-D, 2013 WL 1831786, at *1 (N.D.
Tex. May 1, 2013) (Fitzwater, J.) (cleaned up).
24 FED. R. CIV. P. 60(c).
McGee next argues that the Court erred in finding that there was not cause
and prejudice to excuse his procedural defaults. He references Trevino v. Thaler,

569 U.S. 413 (2013), which extended Martinez v. Ryan, 566 U.S. 1 (2012) to the
Texas collateral relief system. In Martinez, the Supreme Court held that when, as
in Texas, the state procedural framework makes it highly unlikely that a defendant
will have a meaningful opportunity to raise a claim of ineffective assistance of trial
counsel on direct appeal, “procedural default will not bar a federal habeas court
from hearing a substantial claim of ineffective assistance at trial if, in the initial-

review collateral proceeding there was no counsel or counsel in that proceeding was
ineffective.”25
But McGee did not make a Trevino/Martinez argument until after judgment
was entered, in connection with his first motion for relief from judgment.26 “It is too
late for plaintiff to raise a new substantive issue.”27 Indeed, “[a] Rule 60(b) motion
may not be used to raise arguments that could have been raised before judgment or
to argue new legal theories.”28 Because McGee could have raised this argument

before judgment was entered against him, but failed to do so, it does not justify

25 Trevino, 569 U.S. at 429 (quoting Martinez, 566 U.S. at 17).
26 See Doc. 67 (objections to recommendation to deny Rule 60(b) motion in which McGee first
made a Trevino/Martinez argument).
27 Rowe v. Skeen, No. 6:21-cv-0202, 2023 WL 8591486, at *2 (E.D. Tex. Jan. 18, 2023) (citing
Behringer v. Johnson, 75 F.3d 189, 190 (5th Cir. 1996)).
28 Id. (citing Williams v. Toyota Motor Eng’g & Mfg. N. Am., Inc., 402 F. App’x. 309, 313 (5th
Cir. 2012)).
relief under Rule 60(b). In sum, McGee’s request for relief under Rule 60(b)(1) is
untimely and meritless.
2. Rule 60(b)(6)

Rule 60(b)(6) is the catch-all provision allowing a court to reopen a judgment
for “any other reason that justifies relief.” McGee claims Rule 60(b)(6) should
provide him relief by restating arguments about insufficient evidence, ineffective
assistance of counsel, and prosecutorial misconduct that this Court has already
ruled on in its initial opinion at Doc. 44 and in its opinion on McGee’s last batch of
Rule 60(b) motions at Doc. 86.

As he did in his last batch of Rule 60(b) motions, McGee argues that, because
the state court did not clearly and expressly base its denial of any of his claims on a
procedural rule, his claims were not procedurally defaulted for purposes of federal
habeas relief.29 But that is not the only way for a procedural default to occur.
Rather, “[p]rocedural default occurs where (1) a state court clearly and expressly
bases its dismissal of a claim on a state procedural rule, and that procedural rule
provides an independent and adequate ground for the dismissal, or (2) the

petitioner fails to exhaust all available state remedies, and the state court to which
he would be required to petition would now find the claims procedurally barred.”30

29 Doc. 87 at 2.
30 Gutierrez v. Dretke, 392 F. Supp. 2d 802, 822 (W.D. Tex. 2005) (citing Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991)) (emphasis added).
McGee argues that the Court should have considered all eight of his IAC
claims, not just the four that weren’t procedurally barred.31 But, as the Court has
repeatedly stated, several of McGee’s IAC claims were unexhausted because he did

not raise them at all—or did not raise them properly—to the Texas Court of
Criminal Appeals. And because “Texas law prohibits a prisoner from filing a second
or successive application for post-conviction relief if the grounds stated therein
could have been, but were not, raised in a prior state writ,” McGee would be
precluded from raising them in a subsequent writ, so they were procedurally
defaulted absent a showing of cause and prejudice.32 Thus, these claims are

procedurally defaulted even without a state court denial or dismissal premised
expressly and clearly on a state procedural rule.
The same is true for his prosecutorial misconduct and insufficient evidence
claims. McGee argues he brought these claims before the state court, but he did so
only in a successive petition to the Texas Court of Criminal Appeals that was
dismissed as an abuse of the writ.33 His argument that a denial without written
opinion constitutes a denial on the merits (thus opening the door for federal habeas

31 Doc. 87 at 2, 8. McGee argues that the Court of Criminal Appeals “never invoked any
procedur[al] bar” on the claims this Court deemed procedurally defaulted and that the Court of
Criminal Appeals’s denial without an opinion qualifies as a denial on the merits. Id. at 2. But that
does not change the fact that McGee did not properly raise the arguments to the Court of Criminal
Appeals and they are thus now barred. See Doc. 44 at 7–8.
32 See Boutte v. Lumpkin, Civil Action No. 4:22-cv-1921, 2024 WL 1195546, at *3–4 (S.D. Tex.
Mar. 20, 2024) (citing TEX CODE CRIM. PROC. ART. 11.07, § 4; see also Bagwell v. Dretke, 372 F.3d
748, 755–56 (5th Cir. 2004) (holding petitioner to have procedurally defaulted by failing to “fairly
present” claim to state courts in his state habeas application); Smith v. Cockrell, 311 F.3d 661, 684
(5th Cir. 2002) (holding unexhausted claims procedurally barred).
33 See Doc. 40 at 1–2 (collecting and summarizing state court actions).
review) does not change the fact that he failed to bring the claims properly at state
court and they are now procedurally defaulted.
McGee also relies on Rose v. Lundy34 for the proposition that the Court was

required to dismiss his previous Rule 60(b) motions instead of denying them.35 But
this reliance is misplaced for multiple reasons.
The Supreme Court decided Rose—which required district courts to dismiss
petitions containing both exhausted and unexhausted claims—in 1982, and the
Antiterrorism and Effective Death Penalty Act (AEDPA) redefined the habeas
process in 1996.36 Federal courts are no longer required to deny mixed petitions.

Instead, in “limited circumstances,” they can grant a stay and abeyance where the
petitioner shows “good cause for [] failure to exhaust his claims.”37 Otherwise,
courts “should allow the petitioner to delete the unexhausted claims and to proceed
with the exhausted claims.”38 But McGee’s unexhausted claims are procedurally
defaulted, not just unexhausted. He cannot proceed with them in state court. So,
for numerous reasons, this line of argument fails.
For all the reasons stated above, McGee’s arguments under Rule 60(b)(6) fail.

3. Rule 60(b)(3) and (4)
As in his last batch of motions, McGee here argues that Rule 60(b)(3) and (4)
apply but offers no reasoning. He has not identified any fraud or explained how the

34 455 U.S. 509, (1982).
35 Doc. 87 at 3.
36 See Rhines v. Weber, 544 U.S. 269, 273 (2005).
37 Id. at 277.
38 Id. at 278.
judgment would be void.39 McGee has not shown the extraordinary or exceptional
circumstances necessary to warrant relief under Rule 60(b).40 McGee’s Rule 60(b)
motions are DENIED. (Docs. 87, 93).

B. McGee allegations attacking the claims adjudicated on the merits are
successive.

McGee seems to suggest the Court should reconsider all his IAC claims,
including those the Court decided on the merits at Doc. 44.41 This request is
successive: it attacks claims that the federal court already decided on the merits.42
McGee has not obtained permission from the Fifth Circuit to file a successive
habeas petition. Thus, McGee’s allegations attacking claims decided on the merits
will be dismissed without prejudice as successive.
C. McGee’s claims do not warrant an evidentiary hearing.

Finally, McGee requests an evidentiary hearing.43 But a hearing is not
appropriate with “no relevant factual disputes that would require development in
order to assess the claims.”44 And in a § 2254 review, the federal court cannot

39 See FED. R. CIV. P. 60(b)(3)–(4).
40 See In re Pettle, 410 F.3d 189, 191 (5th Cir. 2005) (noting that relief under Rule 60(b) is an
extraordinary remedy and that the desire for a predictable judicial process cautions against
reopening judgments).
41 Doc. 87 at 2.
42 See, e.g., In re Coleman, 768 F.3d 367, 371 (5th Cir. 2014) (“A motion is substantive—and
thus a successive habeas petition—if it ‘seeks to add a new ground for relief,’ or if it ‘attacks the
federal court’s previous resolution of a claim on the merits, 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.’”) (citation omitted)
(emphasis in original).
43 Doc. 96.
44 Trottie v. Stephens, 581 F. App’x 436, 439 (5th Cir. 2014).
expand on the record of the state court that adjudicated the claim.45 Section 2254(e)
bars district courts from conducting an evidentiary hearing when reviewing habeas
petitions unless they rely on (1) new rules of constitutional law made retroactive by

the Supreme Court or (2) “a factual predicate that could not have been previously
discovered through the exercise of due diligence.”46 McGee’s request does not fall
into either of these categories.
Further, because the Court denies McGee’s Rule 60(b) motions, his request
for an evidentiary hearing is DENIED as moot.
III. Conclusion

McGee’s Rule 60(b) motions are DENIED as meritless as to the procedurally
defaulted ineffective assistance of counsel and prosecutorial misconduct claims.
With respect to the claims that were denied on the merits, the Rule 60(b) motions
are successive § 2254 motions in disguise, and, as such, are DISMISSED
WITHOUT PREJUDICE to McGee’s ability to seek leave to file a successive
application from the United States Court of Appeals for the Fifth Circuit.47 (Docs.
87, 93). The Court FINDS MOOT McGee’s motion for an evidentiary hearing

because the underlying claims are denied. (Doc. 94).
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the
Rules Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the Court DENIES A
CERTIFICATE OF APPEALABILITY. In light of the rulings in this case, the

45 Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011); see also Doc. 66 at 8.
46 28 U.S.C. § 2254(e)(2).
47 See 28 U.S.C. § 2244(b)(3); 28 U.S.C. § 2255(h).
Court concludes that McGee has failed to show (1) that reasonable jurists would
find this court’s “assessment of the constitutional claims debatable or wrong,” or
(2) that reasonable jurists would find “it debatable whether the petition states a
valid claim of the denial of a constitutional right” and “debatable whether [this
court] was correct in its procedural ruling.”
The Court INSTRUCTS the Clerk to reopen and then close this case for
statistical purposes.
IT ISSO ORDERED this 2nd day of January, 2025.

UNITEDATATES DISTRICT JUDGE

48 Slack v. McDaniel, 529 U.S. 473, 484 (2000).
12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10773393. Public record. Not legal advice.