Berryhill v. Evans ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 25, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LAV ERN BERRY HILL,
Petitioner-A ppellant,
v. Nos. 04-6392 & 05-6038
ED W ARD EV ANS,
Respondent-Appellee.
A PPE AL S FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E W ESTERN DISTRICT O F O K LAH O M A
(D.C. No. CIV-95-700-T)
Submitted on the briefs: *
Raymond P. M oore, Federal Public Defender; Howard A. Pincus, Assistant
Federal Public D efender, Denver, Colorado for A ppellant.
W .A. Drew Edmondson, Attorney General of Oklahoma; Diane L. Slayton,
Assistant Attorney General, Oklahoma City, Oklahoma for Appellee.
Before BROR BY and EBEL, Circuit Judges, and KANE, ** District Judge.
*
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)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.
**
The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
EBEL, Circuit Judge.
These appeals arise from M r. Berryhill’s fourth federal habeas petition
seeking relief from his state court larceny convictions. 1 In the ten years since the
district court entered its final habeas judgment in this case, the case has come
before us six times. W e previously found it necessary to sanction M r. Berryhill
for filing successive applications to file second or successive petitions, a step that
did not forestall his current filing. Case No. 04-6392 is M r. Berryhill’s appeal
from the denial of his Rule 60(b) motion, brought in his 28 U.S.C. § 2254 habeas
case. Case No. 05-6038 is his appeal from the district court’s order denying him
in forma pauperis (IFP) status on appeal.
1
He filed a previous petition in 1992, raising an appellate delay claim under
Harris v. Champion, 938 F.2d 1062 (10th Cir. 1991). The district court did not
treat this Harris petition as a prior application for purposes of second or
successive principles. See generally Harris v. Champion, 48 F.3d 1127 (10th Cir.
1995) (Harris III) (setting out rules for treatment of Harris petitions under second
or successive principles). M r. Berryhill’s other two prior petitions were
dismissed for failure to exhaust state remedies, and thus did not count as prior
applications for purpose of a second or successive analysis. See Moore v.
Schoeman, 288 F.3d 1231, 1236 (10th Cir. 2002).
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Factual and Procedural H istory
In 1990, M r. Berryhill was convicted in Oklahoma state court of two counts
of larceny from a retailer, after prior conviction of two or more felonies. He was
sentenced to twenty years on each count, to be served consecutively. The
Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions. The
state district court denied his application for post-conviction relief, and the OCCA
affirmed this denial.
On M ay 8, 1995, M r. Berryhill filed his most recent federal habeas petition
in the W estern District of Oklahoma. The district court denied his petition on
July 9, 1996. He appealed. This court denied COA and dismissed his appeal.
Berryhill v. Evans, No. 96-6264 (10th Cir. Feb. 11, 1997). On April 20, 1998,
June 18, 2002, and November 18, 2002, we denied his requests for authorization
to file second or successive § 2254 petitions. After M r. Berryhill’s fourth request
for authorization we imposed the following sanction: “any further applications
filed by M r. Berryhill for leave to file additional collateral attacks on his 1990
Oklahoma convictions for larceny will be deemed denied on the thirtieth day
unless this court otherwise orders.”
M r. Berryhill then attempted to file in this court a motion to recall our
mandate issued June 18, 2002. The clerk of court returned the motion to him,
unfiled. He refiled his motion in district court. In his motion to recall the
mandate, M r. Berryhill alleged that a fraud had been committed on the federal
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habeas court. The district court denied the motion, reasoning that it had no
authority to direct the Tenth Circuit to recall its mandate, and that, in any event,
the habeas case in the district court had been closed for years and M r. Berryhill
was not authorized to file additional pleadings in that case.
M r. Berryhill responded with (1) a motion for reconsideration of the denial,
and (2) a motion requesting the district court to construe his motion to recall the
mandate as a Rule 60(b) motion. The district court denied both motions. He then
filed his “Rule 60(b)-(3)-(6) M otion,” again raising allegations of fraud on the
state and federal courts.
In both his motion to withdraw the mandate and his 60(b)-(3)-(6) motion,
M r. Berryhill asserted that fraud occurred in regard to his original sentence, his
direct appeal, and the habeas proceedings. W ith regard to his direct appeal, he
asserted “fraud” based on the district court’s alleged lack of jurisdiction to
enhance his sentence under the habitual offender provisions. He also asserted that
on December 27, 1990, his court-appointed counsel, “or some unknown attorney,”
filed a “fraudulent appeal out of time” of M r. Berryhill’s convictions with the
OCCA. The appeal was allegedly “fraudulent,” because no actual notice of
appeal had been filed to invest the OCCA with jurisdiction. Notwithstanding the
OCCA’s disposition of his appeal on the merits, M r. Berryhill contended that his
entire state court direct appeal proceeding was the result of a massive conspiracy,
involving the state courts, the district attorney, the public defender’s office, and
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the Oklahoma state attorney general’s office, to deny him an appeal. This alleged
fraud was further compounded w hen his court-appointed attorney on direct appeal
allegedly provided him with ineffective assistance in connection with the issues
that w ere actually raised and decided in the appeal.
As to the habeas proceedings, M r. Berryhill asserted that he brought his
federal habeas petition as a “reaction to the conspiracy committed by the above
named O klahoma state officials.” R., doc. 51, at 3. The Oklahoma A ttorney
General “allowed this Petitioner to file the case at bar in federal court, when in
fact, he knew or should have known that appell[ate] jurisdiction had never been
invoked in this case at bar. [sic]” Id. Apparently, the overall aim of the alleged
conspiracy was to cause M r. Berryhill to use up his single chance to file a direct
appeal in state court and a § 2254 habeas petition in federal court, without raising
the issues he wished to raise.
His allegations of fraud are thus aptly summarized in the following
language from his 60(b)-(3)-(6) motion:
The Okl[ahoma] Attorney General and this Petitioner’s appell[ate]
attorney conspired together and came into this federal court . . . and
lied to this court about the legality of this Petitioner’s sentences and
the correctness of Petitioner’s state appell[ate] procedures, when they
both knew such to be false and a fraud upon this court.
R., doc. 57, at 2. In other words, the claim raised by M r. Berryhill in his Rule
60(b) motion was that the rulings in his conviction and direct appeal were void
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due to fraud and that the witnesses in his habeas proceedings committed fraud by
not admitting that the previous rulings were void.
In his motions, M r. Berryhill contended that, in light of the fraud
comm itted on both the state and federal courts, the federal court should withdraw
its mandate; the previous state court appeal should be declared void; and he
should be granted leave to file an appeal out of time with the OCCA. In other
words, he should be permitted to start the entire process of review ing his
convictions all over again, beginning with a fresh, direct appeal in state court.
The district court, after determining that the Rule 60(b) motion sought
relief from the 1990 verdict and sentences imposed in M r. Berryhill’s state court
proceeding, rather than relief from judgment available under Rule 60(b), denied
the m otion. M r. B erryhill appealed the denial, and the district court denied COA .
Analysis
Proceeding in accordance with the procedures outlined in Spitznas v.
Boone, No. 05-6236, ___F.3d___, 2006 W L 2789868 (10th Cir. Sept. 29, 2006),
we note, first, that this is an appeal from the denial of a Rule 60(b) motion. If,
however, that 60(b) motion was in fact a second or successive petition, the district
court lacked jurisdiction to deny it on the merits. See id. at *1; United States v.
Gallegos, 142 F.3d 1211, 1212 (10th Cir. 1998) (per curiam).
M r. Berryhill’s R ule 60(b) motion charges fraud on the court in regard to
the rulings pertaining to his sentencing, his direct appeal, and the denial of his
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habeas petition. In cases where the allegation of fraud attacks only “some defect
in the integrity of the federal habeas proceedings,” Gonzalez v. Crosby, 125 S. Ct.
2641, 2648, without attacking “the substance of the federal court’s resolution of a
claim on the merits,” the motion will be considered a true 60(b) motion that can
be decided by the district court without prior authorization under § 2244(b).
M r. Berryhill’s allegations of fraud clearly do not fall into this category. Instead,
his allegations seek to assert or reassert habeas claims (alleged fraud committed
regarding his original sentence and direct appeal), or are inextricably intertwined
with a claim of fraud committed on the state courts (and perpetuated by an alleged
continuing fraud committed in the habeas proceeding to cover up the fraud on the
state court), resulting in a merits-based attack on his state convictions.
His allegation that the state hid from the habeas court the fact that the
OCCA lacked jurisdiction to adjudicate his direct appeal, for example, “is
effectively indistinguishable from alleging that [he] is, under the substantive
provisions of the statutes, entitled to habeas relief.” Gonzalez, 125 S. Ct. at 2648;
see also Spitnzas, 2006 W L 2789868, at *2. It necessarily attacks the state court
judgment, seeking to have it declared void, rather than raising an independent
“defect in the integrity of the federal habeas proceedings.” Gonzalez, 125 S. Ct.
at 2648; see also Spitznas, 2006 W L 2789868, at *1.
The same is true for his claim that his state-appointed attorney
“fraudulently” provided him with ineffective assistance on direct appeal, and his
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claim that the state court “fraudulently” lacked jurisdiction to enhance his
sentence under the habitual offender provisions. If it were a sufficient showing of
fraud to re-allege one’s substantive arguments in the guise of fraud on the habeas
court based on, for example, the state’s failure to argue or demonstrate the legal
weaknesses of its own position, no habeas judgment would be safe from a second
or successive attack. See id. at *2, n.4 (cautioning litigants against re-casting
substantive habeas arguments in the guise of “fraud on the court”).
M r. Berryhill also claims that the state conspired to cause him to use up his
first habeas petition by failing to disclose jurisdictional defects in the state court
proceedings. Such an assertion in this case is entirely meritless, because the only
factual basis for it lies in the reformulation of M r. Berryhill’s habeas claims of
fraud on the state court in the guise of fraud on the habeas court.
In sum, M r. Berryhill has filed a second or successive habeas petition and
not a true 60(b) motion. W e therefore vacate the district court’s disposition on
the merits of his 60(b) motion.
M r. B erryhill has filed an application for COA in this case, which we
construe as an application for authorization to file a successive petition. In his
application for COA, he states “I had no money to hire an attorney so it took me
ten years of study in [a] prison law library to determine that my sentences are
Void and the trial judge was without jurisdiction to sentence me to said excessive
sentences.” This allegation, and the other statements in his application for COA ,
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do not establish “a prima facie showing that the application satisfies the
requirements” for a second or successive petition. 28 U.S.C. § 2244(b)(3)(C).
W e VACATE the district court’s order denying M r. Berryhill’s 60(b)
motion, because the court lacked subject matter jurisdiction to rule on the merits
of that motion. W e DENY him authorization to file a second or successive
§ 2254 habeas petition. M r. Berryhill’s request to proceed on appeal in forma
pauperis is G RA N TED . A ll other pending motions are DENIED.
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