Willie Blackmon v. William Armontrout ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2169
___________
Willie Blackmon, also known as *
Willie B. Denson, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
William Armontrout, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: January 16, 2003
Filed: March 12, 2003
___________
Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
___________
PER CURIAM.
Pursuant to Fed. R. Civ. Proc 60(b)(4), Willie Blackmon moved for relief from
the judgment denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
The district court1 construed the motion as a "second or successive" petition, and
dismissed it because Blackmon failed to get authorization from this court pursuant
to 28 U.S.C. § 2244(b)(3). The district court granted a certificate of appealability on
1
The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri.
the issue whether the 60(b)(4) motion should be construed as a "second or
successive" petition. We affirm.
On November 16, 1981, Willie Blackmon and two other men robbed the
Western Union Office in Sikeston, Missouri. While doing so, Blackmon held a
Western Union employee, Betty Grisham, and her husband hostage after pistol
whipping both of them. In September 1982, a Missouri jury convicted Blackmon of
two counts of kidnaping and two counts of assault. The state court sentenced
Blackmon to fifty-six years in prison. State v. Blackmon, 664 S.W.2d 644, 647 (Mo.
Ct. App. 1984).
In June 1986, Blackmon filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254. Relying upon Faretta v. California, 422 U.S. 806 (1975), Blackmon
alleged he was denied the right of self-representation when the state trial court held
he was competent to stand trial, but incompetent to defend himself. The district court
denied the petition on January 25, 1988, and we affirmed. Blackmon v. Armontrout,
875 F.2d 164 (8th Cir. 1989).
Twelve years later, Blackmon filed a motion for relief from judgment under
Fed. R. Civ. Proc. 60(b)(4), again claiming he was denied the right of self-
representation. Blackmon contended his self-representation claim was evaluated
incorrectly because the Supreme Court later held the same standard applies both to
the ability to stand trial, and the ability to represent oneself. Godinez v. Moran, 509
U.S. 389, 397-99 (1993). Blackmon argues the rule announced in Godinez should be
applied retroactively to his case, and that he can raise this issue in a Rule 60(b)(4)
motion. We disagree.
Rule 60(b) motions filed in the district court, which present the same claim
raised in an earlier habeas proceeding, should either be construed as a second or
successive petition and dismissed, or construed as a request for authorization under
-2-
§ 2244(b)(3) and transferred to this court . Boyd v. United States, 304 F.3d 813, 813
(8th Cir. 2002); see also Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir. 1996)
(holding Rule 60(b) motion should be construed as successive habeas petition when
it raises "grounds identical to grounds heard and decided on the merits in [a] previous
petition") (quoting Sawyer v. Whitley, 505 U.S. at 333, 338 (1992)); Felker v. Turpin,
101 F.3d 657, 661 (11th Cir. 1996) ("Rule 60(b) cannot be used to circumvent
restraints on successive habeas petitions. That was true before [AEDPA] was enacted
and it is equally true, if not more so, under the new act").
To the extent this appeal can be considered a request for authorization from this
court for permission to file a second or successive petition, we deny the request.
Blackmon does not meet the standard for obtaining authorization to file a second or
successive petition because he cannot show Godinez is a "new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C.
§ 2244(b)(2)(A). Godinez might be a new rule of constitutional law, but only the
Supreme Court can make the decision retroactive for purposes of collateral review.
Tyler v. Cain, 533 U.S. 656, 662 (2001). The Supreme Court has not made the new
rule announced in Godinez retroactive to cases on collateral review.
We affirm the district court's dismissal.2
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
2
We deny all the pending motions and requests made pro se by Blackmon
because they are without merit.
-3-