ROBINSON v. BOYD RTC (2024)

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Kirk D. Robinson's (“Robinson” or “Petitioner”) Motion for Relief from Judgment dated December 28, 2023, and docketed in this Court on January 4, 2024. (Filing No. 75.) On November 3, 2023, Senior United States District Judge Joseph F. Bataillon entered a Memorandum and Order and Judgment (Filing Nos. 48 & 49) dismissing Robinson's amended habeas petition (Filing No. 17) with prejudice because it is barred by the limitations period set forth in 28 U.S.C. § 2244(d). This matter was subsequently reassigned to the undersigned. (Filing Nos. 62 & 63.) The Eighth Circuit Court of Appeals forwarded to this Court what it construed as a notice of appeal (Filing No. 58) filed by Robinson on November 13, 2023, and Robinson also filed a Notice of Appeal (Filing No. 53) in this Court on November 17, 2023. On January 3, 2023, the Court entered an order denying Robinson leave to proceed in forma pauperis on appeal and his other then-pending motions. (Filing No. 73.) The following day, on January 4, 2024, the Clerk of the Court sent notification of Robinson's appeal to the Eighth Circuit (Filing No. 74), and Robinson's present motion was docketed shortly thereafter.

I. JURISDICTION

Initially, it must be acknowledged that this case is on appeal. As a general rule, a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously, and the filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal. Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004). The district court may, however, consider a motion pursuant to Fed. R. Civ. P. 60(b) on the merits and deny it even if an appeal is already pending in the Court of Appeals. Id. If the district court decides to grant the motion, however, the parties should ask the Court of Appeals to remand the case for entry of a proper order. See id. Here, the basis for Robinson's motion is Rule 60(b)(4) and (6). See Fed. R. Civ. P. 60(b)(4),(6) (providing for relief from a judgment for the reason that “the judgment is void” or “any other reason that justifies relief”).

II. DISCUSSION

A. Standard for Review of 60(b) Motion in Closed Habeas Proceeding

Before considering Robinson's claims for Rule 60(b) relief, the Court must make an initial determination of whether the claim is a proper ground for Rule 60 relief or whether the claim amounts to a second or successive habeas claim. A prisoner may file a second or successive petition under § 2254 only after obtaining authorization to do so from the appropriate United States Court of Appeals. 28 U.S.C. § 2244(b)(3). The Eighth Circuit has directed that where a prisoner files a Rule 60(b) motion following the dismissal of a habeas petition, the district court should file the motion and then 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. § 2254. Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002). If the district court determines the Rule 60(b) motion is actually a second or successive habeas petition, it should dismiss the motion for failure to obtain authorization from the Court of Appeals or, in its discretion, transfer the purported Rule 60(b) motion to the Court of Appeals. Boyd, 304 F.3d at 814.

As the Eighth Circuit has explained,

A Rule 60(b) motion is a second or successive habeas corpus application if it contains a claim. For the purpose of determining whether the motion is a habeas corpus application, claim is defined as an “asserted federal basis for relief from a state court's judgment of conviction” or as an attack on the “federal court's previous resolution of the claim on the merits.” Gonzalez [v. Crosby], 545 U.S. [524,] 530, 532 [125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)]. “On the merits” refers “to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d).” Id. at 532 n. 4, 125 S.Ct. 2641. When a Rule 60(b) motion presents a claim, it must be treated as a second or successive habeas petition under AEDPA [Antiterrorism and Effective Death Penalty Act].

No claim is presented if the motion attacks “some defect in the integrity of the federal habeas proceedings.” Id. at 532, 125 S.Ct. 2641. 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.” Id. at n.4.

Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009) (emphasis in original).

B. Robinson's Rule 60(b) Motion

Robinson argues that Judge Bataillon erred in his judgment by failing to consider and address Robinson's claims of constitutional rights violations and by failing to address any of the Nebraska statutes Robinson “used as evidence to show why he may have actually been innocent of the charges he was convicted and sentenced for.” (Filing No. 75 at 1–2.) Liberally construed, Robinson argues that Judge Bataillon failed to adequately review and address Robinson's arguments in support of excusing the statute of limitations bar. To that extent, the Court concludes Robinson's motion is properly considered as one for relief under Rule 60(b).

In his Rule 60(b) motion, Robinson specifically argues (1) his conviction for possession of a firearm by a prohibited person under Neb. Rev. Stat. § 28-1206(1)(a)(iii) is void for violating the Second Amendment and due process based on New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), and United States v. Rahimi, 61 F.4th 443 (5th Cir.), cert. granted, ––– U.S. ––––, 143 S. Ct. 2688, 216 L. Ed. 2d 1255 (2023), and (2) his conviction for stalking violates his Fifth Amendment right against double jeopardy because the stalking charge was based on the same circumstances as an earlier violation-of-protection-order charge that was dismissed. (Filing No. 75 at 1–2.)

Robinson raised his first argument in his amended habeas petition (Filing No. 17 at 6) and, arguably, raised his second argument as well (Filing No. 17 at 6 and 43 (referring to another case filed by Robinson, 8:23CV137, that included Robinson's double jeopardy claim); see also Filing No. 18 at 4, Case No. 8:23CV137). Upon review, both of Robinson's arguments clearly constitute claims as they assert a federal basis for relief from his state court conviction and attack his conviction on the merits. Judge Bataillon concluded Robinson's habeas petition was barred by the statute of limitations, which precluded consideration of Robinson's claims on the merits. Moreover, Robinson's arguments challenge only the legal validity of his convictions and do not address his actual innocence of the crimes for which he was convicted. See Bousley v. U.S., 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (“ ‘actual innocence’ means factual innocence, not mere legal insufficiency” (citation omitted)); Narcisse v. Dahm, 9 F.3d 38, 40 (8th Cir. 1993) (“[P]etitioner's claim focuses solely on the legal validity of his prior convictions, and not their factual validity. His claim is one of legal innocence, not actual innocence.”). Thus, to the extent Robinson claims Judge Bataillon erred in not considering these arguments, Robinson's motion fails as his arguments attack his convictions on the merits and are not proper arguments in support of the actual innocence exception to the statute of limitations bar.

Liberally construed, Robinson's motion may also seek reconsideration of his other arguments raised in his amended petition and brief in support of the actual innocence exception. Upon careful review, the undersigned concludes, as Judge Bataillon did, that “Robinson has failed to present evidence of innocence so strong that the Court cannot have confidence in the outcome of his state court conviction.” (Filing No. 48 at 9 (citing Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)).)

As the Court understands Robinson's position, he claims he is “innocent” of violating Neb. Rev. Stat. § 28-1206(1)(a)(iii) because he was never convicted of violating a protection order and could not have been a prohibited person. (Filing No. 17 at 6; Filing No. 40 at 3.) Section 28-1206(1)(a)(iii) provides:

A person commits the offense of possession of a deadly weapon by a prohibited person if he or she: (a) Possesses a firearm, a knife, or brass or iron knuckles and he or she: ․ (iii) Is the subject of a current and validly issued domestic violence protection order, harassment protection order, or sexual assault protection order and is knowingly violating such order.

Neb. Rev. Stat. § 28-1206(1)(a)(iii) (emphasis added). By its terms, section 28-1206(1)(a)(iii) does not require a conviction for violating a protection order but rather only requires that the individual subject to the protection order is knowingly violating a protection order when in possession of a deadly weapon. Here, the record is undisputed that Robinson was subject to a protection order at the time the conduct serving as the basis for his conviction occurred.¹ (Filing No. 17 at 6, 65; Filing No. 36-2 at 10.) Further, the record also contains evidence that Robinson was in possession of a firearm while violating that protection order. (Filing No. 36-2 at 8–15.) Robinson pleaded no contest to possession of a firearm by a prohibited person in violation of section 28-1206(1)(a)(iii), and he has presented no evidence of his actual innocence of that crime nor evidence of innocence so strong that the Court cannot have confidence in the outcome of his plea-based state court conviction. See Schlup, 513 U.S. at 316, 115 S.Ct. 851.

III. CONCLUSION

While Robinson's motion may be properly considered as a Rule 60(b) motion, the Court finds, after careful review, that Robinson has failed to demonstrate that he is entitled to relief from the Court's judgment dismissing his habeas petition with prejudice.

IT IS THEREFORE ORDERED that:

1. Petitioner Kirk D. Robinson's Motion for Relief from Judgment Pursuant to Federal Rule of Civil Procedure 60(b)(4) and (6) (Filing No. 75) is denied.

2. Petitioner is advised that to seek appellate review of this denial, a separate notice of appeal must be filed to challenge this order.

3. The Clerk of the Court is directed to transmit a copy of this Memorandum and Order to the Eighth Circuit Court of Appeals as a supplement to the Notice of Appeal.

FOOTNOTES

1.   To the extent Robinson is arguing that he did not become a prohibited person because his requested show-cause hearing on the temporary ex parte harassment protection order had not been held at the time of his offense and arrest (see Filing No. 17 at 6), his argument fails as he offers no evidence to show that the temporary ex parte harassment order was not valid and effective at the time of his offense. Robinson's reliance on Neb. Rev. Stat. § 28-311.09(9)(c) is also misplaced as that section merely sets forth circumstances when a temporary ex parte harassment protection order is affirmed and deemed the final protection order.

Robert F. Rossiter, Jr., Chief United States District Judge