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Bob D. McDaniel v. Michael Cody, Warden, Bob Dale McDaniel v. Steve Hargett, 104 F.3d 367, 10th Cir. (1996)
Bob D. McDaniel v. Michael Cody, Warden, Bob Dale McDaniel v. Steve Hargett, 104 F.3d 367, 10th Cir. (1996)
3d 367
97 CJ C.A.R. 31
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of these appeals. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cases are
therefore ordered submitted without oral argument.
1. No. 96-6040
3
This is the second occasion on which this case has been before us. Appellant
initially appealed from the district court's order denying his third habeas
petition as abusive. We affirmed in an unpublished order and judgment.
McDaniel v. Cody, No. 94-6217, 1994 WL 563422 (10th Cir. Oct. 14, 1994),
cert. denied, 115 S.Ct. 1151 (1995). Approximately one year later, appellant
filed his "Motion for Relief from Judgment or Order" in the district court. The
district court denied the motion, and it is from this denial that appellant now
appeals.
We review an order denying relief under Rule 60(b)(6) for abuse of discretion.
State Bank of Southern Utah v. Gledhill (In re Gledhill), 76 F.3d 1070, 1080
(10th Cir.1996). "[A] district court may grant a Rule 60(b)(6) motion only in
extraordinary circumstances and only when necessary to accomplish justice."
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 579 (10th Cir.1996).
The district court relied on the general rule that a change in the law, or in the
judicial view of an established rule of law, does not justify 60(b)(6) relief. See,
e.g., Van Skiver v. United States, 952 F.2d 1241, 1245 (10th Cir.1991).
Appellant has cited authority indicating that a change in governing Supreme
Court precedent may warrant relief under Rule 60(b)(6). See Metz v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1491 n. 9 (10th Cir.1994).
Even assuming that this authority applies here,2 the district court did not abuse
its discretion by denying appellant's Rule 60(b)(6) motion, because the changes
in Supreme Court precedent appellant alleges do not justify relief.
In reviewing an order denying Rule 60(b)(6) relief, we are not concerned with
the merits of the underlying judgment. Van Skiver, 952 F.2d at 1243. The
alleged changes in the law are relevant here only to the extent that they should
have caused the district court, in its sound discretion, to modify its earlier
decision that appellant's third petition was abusive.
Neither of the Supreme Court cases upon which appellant relies, O'Neal v.
McAninch, 115 S.Ct. 992 (1995), and Schlup v. Delo, 115 S.Ct. 851 (1995) has
any effect on the abusiveness of appellant's petition. Neither creates a new,
relevant rule of law which was not reasonably available to appellant or his
counsel when he filed his previous habeas petitions. See McCleskey v. Zant,
499 U.S. 467, 494 (1991).3 O'Neal clarifies the rule that habeas relief should be
granted where the reviewing habeas court has grave doubts about whether an
error of federal law affected the jury's verdict. 115 S.Ct. at 994-95. As the
In this appeal, appellant challenges the district court's dismissal of his fourth
habeas petition. He raised three issues in his petition. He admits his first issue
is successive: the trial court's error in admitting a knife he alleges was illegally
seized. Appellant contends that the claim is not barred, however, because the
O'Neal case constitutes intervening, superseding authority. O'Neal comes into
play only where a federal court determines that a constitutional error has been
committed. 115 S.Ct. at 994. No such error has been found here. Rather,
appellant's Fourth Amendment claim has been rejected because under the rule
in Stone v. Powell, 428 U.S. 465, 482 (1976), federal courts are precluded from
reviewing such claims where the petitioner has had a full and fair opportunity to
fully litigate the claim in state court. See McDaniel, 582 F.2d at 1243.
Moreover, as mentioned, he had the O'Neal rule available to him under the
Kotteakos case when he filed his previous petitions. His illegal search issue is
barred, therefore, as successive.
10
Appellant next raises a violation of Brady v. Maryland, 373 U.S. 83, 87 (1963),
based on the prosecution's failure to disclose exculpatory evidence. As excuse
for not bringing this claim in his previous petition, he claims that Schlup
provides a new basis for a claim of actual innocence in connection with
evidence which was not disclosed by the prosecution. He claims he has new
exculpatory evidence to offer which meets the Schlup standard.
11
Schlup only allows a petitioner to pass through the procedural bar to his Brady
claims if he "presents evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied that the
trial was free of nonharmless constitutional error." 115 S.Ct. at 861. "Without
any new evidence of innocence, even the existence of a concededly meritorious
constitutional violation is not in itself sufficient to establish a miscarriage of
justice that would allow a habeas court to reach the merits of a barred claim."
Id. Appellant offers here no new evidence of actual innocence, other than his
own affidavit concerning what he believes certain witnesses would have said,
had they been called at trial. "[T]he 'actual innocence' gateway through a
procedural bar is not intended to provide a petitioner with a new trial, with all
the attendant development of evidence, in hopes of a different result ... it is the
petitioner's, not the court's, burden to support his allegations of 'actual
innocence' by presenting new reliable evidence of his innocence." Battle v.
Delo, 64 F.3d 347, 354 (8th Cir.1995) (citations omitted), cert. denied, 116
S.Ct. 1881 (1996). Appellant has not met his burden here.
12
Finally, appellant alleges that his counsel was ineffective for failing to
investigate witnesses and introduce exculpatory evidence. The district court
found that this claim was successive, having been raised in his third habeas
petition. We agree. Appellant relies on United States v. Galloway, 56 F.3d
1239 (10th Cir.1995) and Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir.1994),
cert. denied, 115 S.Ct. 2564 (1995). Neither case helps him here. Galloway
does not purport to generally affect successiveness and abusiveness principles,
which are applicable here. See Galloway, 56 F.3d at 1243. Brecheen concerns
procedural bar under Oklahoma state law, not federal bar under
successiveness/abusiveness principles. The claims in appellant's fourth habeas
petition all are procedurally barred, either as successive or abusive.
13
The judgments of the United States District Court for the Western District of
Oklahoma, appealed from in Nos. 96-6040 and 96-6215, are AFFIRMED.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
**
Each of these cases was filed prior to the signing of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. No. 104-132 (April 24, 1996).
This court previously issued Mr. McDaniel a certificate of probable cause in
each case. We therefore do not consider whether the appeals warrant a
Metz was not a habeas case. Because appellant has failed to show his
entitlement to Rule 60(b)(6) relief, we need not decide here whether a Rule
60(b) motion may be used as a means of obtaining successive review of habeas
issues based on change of law without satisfying otherwise applicable rules
concerning successive and abusive petitions
The Oklahoma Court of Criminal Appeals determined that the jury was
strongly convinced of appellant's guilt and that there was sufficient evidence to
support his convictions. McDaniel v. State, 509 P.2d 675, 679-80
(Okla.Crim.App.1973)