Petition for Writ of Certiorari — Daniel Louis Jackson, Petitioner v. United States

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

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No: 23-3700

Daniel Louis Jackson

Petitioner - Appellant

V"

v.

United States of America

Respondent - Appellee

Appeal from U.S. District Court for the Northern District of Iowa - Eastern

(6:19-cv-02017-LTS)

JUDGMENT

Before COLLOTON, GRUENDER, and KELLY, Circuit Judges.

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

The motion to proceed in forma pauperis is denied as moot.

January 18,2024

i

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

f\jfe*nclix 5

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 23-3700

Daniel Louis Jackson

Appellant

v.

United States of America

Appellee

i

Appeal from U.S. District Court for the Northern District of Iowa - Eastern

(6:19-cv-02017-LTS)

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

I

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

March 08, 2024

6

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

EASTERN DIVISION

DANIEL LOUIS JACKSON,

No. C19-2017-LTS

(Crim. No. CR16-2057-LTS)

Petitioner,

vs.

ORDER

UNITED STATES OF AMERICA,

Respondent.

I.

INTRODUCTION

This matter is before me on three pro se filings by plaintiff Daniel Jackson. First,

Jackson filed a motion (Doc. 39) to “reopen” my previous ruling under Rule 60(b)(1).

Second, Jackson mailed a second motion (Doc. 45) to “reopen,” this time under Rule

60(b)(6), which the Clerk’s office filed as a supplement to the first motion to reopen.

Third, Jackson filed a motion (Doc. 49) for a “decision” regarding his previous filings.

Jackson sent in several other documents (Docs. 40, 42, 43, 45, 46 and 47) that the Clerk’s

office variously filed as supplements to his motion (Doc. 39) or as correspondence. i

Jackson’s substantive motions request relief from my prior ruling (Doc. 26) which

denied his 28 U.S.C. § 2255 motion. He raises two issues: (1) I committed legal error

when I reviewed documents outside of the arrest warrant in ruling on his § 2255 claim;

and (2) I committed legal error when I did not review the affidavit allegedly supporting

probable cause to search Jackson’s Facebook account.

11 note that Jackson filed two other motions which were docketed in his criminal case. Those

will be considered in a separate order.

Case 6:19-cv-02017-LTS-MAR Document 50 Filed 11/27/23 Page 1 of 10

II.

PROCEDURAL HISTORY

Jackson filed his § 2255 action on March 20, 2019. See Doc. 1. His claims

alleged ineffective assistance of trial counsel and prosecutorial misconduct during his

trial. Doc. 1-1 at 3. On August 12, 2021,1 denied Jacksons’ § 2255 motion and declined

to issue a certificate of appealability. Doc. 26 at 36. The Eighth Circuit Court of Appeals

also denied his application for a certificate of appealability. Doc. 35. On March 17,

2022, Jackson’s petitions for a panel rehearing and rehearing en banc were denied. Doc.

36. Jackson then filed a petition for a writ (Doc. 38) of certiorari, which was denied

October 3, 2022. Doc. 41 at 2.

On August 11, 2022,2 Jackson submitted his first motion (Doc. 39) to “reopen”

my previous § 2255 ruling under Rule 60(b)(1). Doc. 39 at 2. Jackson filed two

documents (Docs. 42, 43) supplementing this motion. On February 21, 2023, Jackson

filed his second motion (Doc. 45) to “reopen” under Rule 60(b)(6). In support of that

motion, Jackson filed several documents (Docs. 46, 47) supplementing his motion. On

October 16, 2023, Jackson filed his motion for “decision.” Doc. 49.

III.

RELEVANT FACTS

Jackson’s § 2255 claims arose from his 2017 conviction in this court (Crim. No.

CR 16-2057-LTS) on four counts related to an armed bank robbery. Doc. 26 at 1-2.

Following a three-day jury trial, Jackson was convicted of armed bank robbery, aiding

and abetting the use, carrying and brandishing of a firearm during a crime of violence,

conspiracy to commit armed robbery and conspiracy to use, carry and brandish a firearm

during a crime of violence. Crim. Doc. 133.

Following the denial of Jackson’s post-trial motions and direct appeal (Crim.

Docs. 142, 206), Jackson filed a pro se § 2255 motion to vacate, set aside or correct his

2 Jackson’s motion to reopen was postmarked on August 11, 2022, but was not filed until August

15, 2022. Doc. 39 at 6.

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sentence. Doc. 1. In his motion, Jackson alleged six grounds of ineffective assistance

of counsel and one allegation of prosecutorial misconduct. Doc. 1-1 at 3. Jackson

asserted four claims of ineffective assistance of his trial counsel, Jill Johnston. Doc. 11 at 4, 8, 10, 12, 13. Among his claims of ineffective assistance of counsel, Jackson

alleged that Johnston was ineffective for (1) failing to challenge the basis of Sheriff John

LeClere’s arrest warrant (Doc. 1-1 at 4-5) and (2) “for not raising the issue on evidence

gained pursuant to an unconstitutional search” of his Facebook messages and videos

(Doc. 1-1 at 8). After considering Jackson’s § 2255 motion on its merits, I denied all of

his claims. Doc. 26 at 36.

7V.

A.

APPLICABLE STANDARDS

Rule 60(b)

Jackson moves to reopen my order denying relief of his § 2255 claims based on

Federal Rule of Civil Procedure 60(b), which states:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.

On motion and just terms, the court may relieve a party or its legal

representative 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 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.

Fed. R. Civ. P. 60(b). Subsection (c) limits motions made pursuant to grounds (l)-(3)

to “no more than a year after the entry of the judgment or order or the date of the

proceeding.” Fed. R. Civ. P. 60(c)(1). Further, all Rule 60(b) motions “must be made

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within a reasonable time.” Id. Jackson relies on subsections (1) and (6) to argue my

judgment should be reopened.

“Rule 60(b) provides extraordinary relief in/exceptional circumstances ”) Sellers

v. Mineta, 350 F.3d 706, 716 (8th Cir. 2003). It is “not intended as a substitute for a

direct appeal from an erroneous judgment. ” Spinar v. South Dakota Bd. of Regents, 796

F.2d 1060, 1062 (8th Cir. 1986) (cleaned up). The Eighth Circuit has strictly upheld the

one-year limitation on motions brought under Rule 60(b)(l)-(3), including when a Rule

60(b)(6) motion is substantively the same as a (b)(l)-(3) motion. Middleton v. McDonald,

388 F.3d 614, 616-17 (8th Cir. 2004). Simply labeling a motion as a Rule 60(b)(6)

motion, when it is actually alleging any of the circumstances covered by (b)(l)-(3), cannot

avoid the one-year limitation. Id. This time period runs from the date a court enters the

judgment the movant is attempting to reopen. Kennedy Bldg. Associates v. CBS Corp.,

576 U.S. 872, 879-80 (8th Cir. 2009).

The Supreme Court recently clarified which claims are governed by Rule 60(b)(1).

Kemp v. United States, 596 U.S. 528, 530 (2022). The Court concluded, “based on the

text, structure, and history of Rule 60(b), that a judge’s errors of law are indeed mistakes

under Rule 60(b)(1).” Id. (cleaned up). Further, “Rule 60(b)(1) covers all mistakes of

law made by a judge. ” Id. at 534.

Under Rule 60(b)(6), a court may grant relief from final judgments for “any other

reason that justifies relief.” Rouse v. United States, 14 F.4th 795, 799 (8th Cir. 2021).

A petitioner must bring a Rule 60(b) motion “within a reasonable time” and must present

“extraordinary circumstances” to justify relief. Id. (citing Davis v. Kelley, 855 F.3d

833, 835 (8th Cir. 2017)). Rule 60(b)(6) extraordinary circumstances “rarely occur in

the habeas context.” Rouse, 14 F.4th at 799 (quoting Gonzalez v. Crosby, 545 U.S. 524,

535 (2005)).

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B.

Successive § 2255 Claims

Rule 60(b) applies to habeas proceedings to the extent it is not inconsistent with

the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Ward v. Norris, 577

F.3d 925, 932 (8th Cir. 2009); see also 28 U.S.C. § 2255; Fed. R. Civ. P. 81(a)(4). A

successive § 2255 motion requires certification by a court of appeals before filing. See

28 U.S.C. § 2244(b)(3)(A).

“It is well-established that inmates 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. 2005); see also Boyd v. United States, 304 F.3d

813, 814 (8th Cir. 2002) (per curiam) (if a Rule 60(b) motion is actually a successive

habeas petition, the district court should deny it for failure to obtain authorization from

the court of appeals, or in its discretion, transfer the motion to the court of appeals).

Rule 60(b) creates an exception to the finality of a district court’s judgment in a

habeas proceeding. See Ward, 577 F.3d at 933. District courts, when presented with a

purported Rule 60(b) motion following the dismissal of a habeas petitioner, should

conduct a brief initial inquiry to determine whether the allegations in the Rule 60(b)

motion in fact amount to a second or successive collateral attack under 28 U.S.C. § 2255.

See Boyd, 304 F.3d at 814.

A Rule 60(b) motion seeking relief from the denial of a § 2255 motion and raising

claims of a postconviction relief nature should be construed as a successive § 2255

motion. See Guinan v. Delo, 5 F.3d 313, 316-17 (8th Cir. 1993). A Rule 60(b) motion

is a second or successive habeas corpus application if it contains a claim. Ward, 577

F.3d at 933. When no “claim” is presented, there is no basis for contending that the

Rule 60(b) motion should be treated like a habeas application. Gonzalez, 545 U.S. at

533. A “claim” is defined as an attack on the “federal court’s previous resolution of the

claim on the merits.”

See Ward, 577 F.3d at 933.

“On the merits” refers “to a

determination that there exist or do not exist grounds entitling a petitioner to habeas

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Case 6:19-cv-02017-LTS-MAR Document 50 Filed 11/27/23 Page 5 of 10

corpus relief. ...” Id. When a Rule 60(b) motion presents a claim, it must be treated

as a second or successive habeas petition under AEDPA. Id.

No claim is presented if the motion attacks “some defect in the integrity of the

federal habeas proceedings.” See Gonzalez, 545 U.S. at 532. “Likewise, a motion does

not attack a federal court’s determination on the merits if it ‘merely asserts 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.’” Ward,

577 F.3d at 933 (quoting Gonzalez, 545 U.S. at 530). “The Supreme Court has ‘note[d]

that an attack based on the movant’s own conduct, or his habeas counsel’s omissions,

ordinarily does not go to the integrity of the proceedings, but in effect asks for a second

chance to have the merits determined favorably.’” Id. (quoting Gonzalez, 545 U.S. at

532 n.5). Although an assertion of ineffective assistance of habeas counsel may be

characterized as a defect in the integrity of the habeas proceeding, it ultimately seeks to

assert or reassert substantive claims with the assistance of new counsel. Id. at 932.

Moreover, AEDPA specifically prohibits such grounds for relief. Id.

V.

ANALYSIS

My order denying Jackson § 2255 relief was filed on August 12, 2021. Doc. 26.

Although Jackson’s Rule 60(b)(1) motion (Doc. 39) was not filed until August 15, 2022,

it was postmarked August 11, 2022. See Doc. 39 at 6. Because Jackson deposited his

Rule 60(b)(1) motion in the prison mail system before the one-year filing deadline

imposed under Rule 60(c)(1), his motion is timely. See Sorensen v. Tidwell, 114 Fed.

App’x 266, 267 (8th Cir. 2004) (applying the prison mailbox rule to find § 1983 petitioner

had timely filed her amended complaint).

Jackson asserts two bases for relief under Rule 60(b). First, Jackson argues he is

entitled to relief under Rule 60(b)(1) because I made a mistake of law when I considered

information outside of the four comers of Sheriff LeClere’s affidavit to find probable

cause existed for his arrest. Doc. 39 at 2-4. Within this argument, Jackson asserts: (1)

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I erred in relying on Gerstein v. Pugh, 420 U.S. 103 (1975), because the facts of that

case were dissimilar to his case (Doc. 39 at 4), (2) I erred when I ignored his § 2255

argument that Sheriff LeClere’s affidavit was bare bones (Doc. 42 at 2) and (3) I erred

in ruling on his § 2255 claim by not finding the state magistrate judge’s determination of

probable cause was a conclusory assertion (Doc. 43 at 3).

Second, Jackson argues he is entitled to relief under Rule 60(b)(6) because I did

not conduct a full review on the merits of whether there was probable cause to search his

Facebook account. Doc. 45 at 1. Jackson argues that my failure to review Agent

Pearson’s affidavit when ruling on his § 2255 ineffective assistance of. counsel claim is

an extraordinary and compelling circumstance to grant relief under Rule 60(b)(6). Id. at

4. In support of his argument, Jackson attached an affidavit (Doc. 46 at 1), his February

2023 correspondence with Jill Johnston (Doc. 46 at 3-4), the search warrant issued for

the search of his Facebook accounts (Doc. 46 at 5) and a supplemental argument that my

judgment was void under Rule 60(b)(4) (Doc. 47 at 2).

Conducting the required initial inquiry, I find that Jackson’s Rule 60(b) motions

are second or successive collateral attacks under § 2255. See Boyd, 304 F.3d at 814.

First, although Jackson’s motion (Doc. 39) purports to assert a basis of “procedural

error,” it actually attacks my previous ruling on the merits of his ineffective assistance

of counsel claim. See Gonzalez, 545 U.S. at 532 n.4 (defining “on the merits” in the

Rule 60(b) context to mean “a determination that there exist or do not exist grounds

entitling a petitioner to habeas corpus relief’). Jackson contests iny determination on the

merits that his trial counsel’s failure to challenge the probable cause basis was not

deficient performance. Distinctly, Jackson’s motion does not attack a “defect in the

integrity of the federal habeas proceeding” but attacks the outcome of my determination

on the merits. See Ward, 577 F.3d at 933 (quoting Gonzalez, 545 U.S. at 532 n.4)

(listing such defects as “a denial for such reasons as failure to exhaust, procedural default,

or statute-of-limitations bar”).

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Second, Jackson’s Rule 60(b)(6) motion also fails as a second or successive attack

under § 2255. See Rouse, 14 F.4th at 800 (“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.”). Jackson argues I committed legal error by failing to

conduct “a full review on the merits on whether there was probable cause to search his

Facebook.” Doc. 45 at 1. The substance of Jackson’s motion attacks my previous merits

determination that his trial counsel was not ineffective for declining to challenge the

issuance of the Facebook search warrant (Doc. 26 at 14). Jackson’s claim therefore fails

as a second or successive § 2255 claim. Moreover, I find Jackson’s claim does not

present an “extraordinary circumstance” warranting relief under Rule 60(b)(6). See

Davis, 855 F.3d at 833.

VI.

CERTIFICATE OF APPEALABILITY

The certificate of appealability requirement set forth in 28 U.S.C. § 2253(c)(1)

applies to the denial of a Rule 60(b) motion seeking to reopen a habeas case. Lambros,

404 F.3d at 1036; see also Zeitvogel v. Bowersox, 13 F.3d 56 (8th Cir. 1996) (per curiam)

(published order denying certificate in appeal from denial of Rule 60(b) motion seeking

relief from order denying habeas petition), cert, denied, 519 U.S. 1036 (1996). A district

court possesses the authority to issue certificates of appealability under § 2253(c) and

■ ^

Federal Rule of Appellate Procedure 22(b). See Tiedeman v. Benson, 122 F.3d 518, 522

(8th Cir. 1997). Under § 2253(c)(2), a certificate of appealability may issue only if a

movant has made a substantial showing of the denial of a constitutional right. See MillerEl v. Cockrell, 537 U.S. 322, 335-36 (2003); Tiedeman, 122 F.3d at 523. To make such

a showing, the issues must be debatable among reasonable jurists, a court could resolve

the issues differently, or the issues deserve further proceedings. See Miller-El, 537 U.S.

at 335-36 (reiterating standard).

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IT IS SO ORDERED.

DATED this 27th day of November, 2023.

f

Leonard T. Strand, Chief Judge

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