United States District Court, N.D. Texas, Dallas Division
MYRON TANKSLEY (TDCJ No. 1002421), Petitioner,
LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
Myron Tanksley, a Texas prisoner, has initiated this pro
se action on the form petition for a writ of habeas
corpus by a person in state custody. See Dkt. No. 3.
Tanksley insists, however, that he is “not filing a
second or successive petition” but is instead
“request[ing] an evidentiary hearing in federal
proceedings.” Id. at 8.
resulting action has been referred to the undersigned United
States magistrate judge for pretrial management under 28
U.S.C. § 636(b) and a standing order of reference from
United States District Judge David C. Godbey.
undersigned enters these findings of fact, conclusions of
law, and recommendation that Tanksley's request,
construed as a motion under Federal Rule of Civil Procedure
60(b), should be denied.
lengthy background of Tanksley's criminal and
postconviction actions, up to that point, was set out when
another judge of this Court last addressed a habeas
application filed by Tanksley:
Petitioner was convicted of aggravated robbery and sentenced
to 40 years' imprisonment. State v. Tanksley,
No. F-9955168 (203rd Judicial District Court, Dallas County,
2000), aff'd, Tanksley v. State, No.
05-00-01429-CR (Tex. App. - Dallas, 2001, pet. ref'd).
Subsequently, Petitioner unsuccessfully challenged his
conviction in state and federal habeas proceedings. Ex
parte Tanskley, WR-37, 743-02 (Tex. Crim. App. Sept. 11,
2002) (denying state application); Ex parte
Tanksley, WR-37, 743-05 (Tex. Crim. App. Jan. 16, 2008)
(dismissing state application as not compliant with state
procedure); Ex parte Tanksley, WR-37, 743-03, -04, -
06, - 09 (Tex. Crim. App.2003, 2004, 2008, 2012) (dismissing
state applications as abusive of writ); Tanksley v.
Cockrell, No. 3:02-CV-2348-D (N.D. Tex. Feb. 11, 2003)
(dismissing federal petition as unexhausted); Tanksley v.
Dretke, No. 03-CV-2567-D (N.D. June 3, 2004) (denying
federal petition on its merits); Tanksley v. Dretke,
No. 3:04-CV-1760-P (N.D. Tex. Dec. 10, 2004) (dismissing
federal petition for failure to prosecute); Tanksley v.
Thaler, No. 3:12-CV-4145-K-BH (N.D. Tex. Nov. 27, 2012)
(transferring successive federal petition to the court of
appeals); In re Tanksley, No. 12-1190 (5th Cir. Feb.
14, 2013) (denying leave to file successive application).
Tanksley v. Stephens, No. 3:13-cv-2731-B-BK, 2013 WL
5178187, at *1-*2 (N.D. Tex. Mar. 23, 2012) (in which
Tanksley sought “to contest his conviction for
aggravated robbery” and asserted that “the state
court abused its discretion in issuing a ‘blanket
denial, ' and in denying him an evidentiary hearing and
discovery, ” and the Court, construing the petition as
successive, transferred it to the United States Court of
Appeals for the Fifth Circuit).
Standards and Analysis
faced with a Rule 60(b) motion filed in response to the
denial of a petition for habeas relief, the court must first
determine whether the motion ‘should be treated as a
second or successive habeas petition [or whether] it should
be treated as a “true” 60(b) motion.'”
Pursley v. Estep, 287 F. App'x 651, 653 (10th
Cir. 2008) (quoting Spitznas v. Boone, 464 F.3d
1213, 1217 (10th Cir. 2006)); see In re Jasper, 559
F. App'x 366, 370-71 (5th Cir. 2014) (“In order to
prevent conflicts between the strict limitations in [the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”)] on second-or-successive habeas
petitions and the more lenient restrictions in Rule 60(b) on
motions for relief from final judgments, federal courts
examine Rule 60(b) motions to determine whether they are, in
fact, second-or-successive habeas petitions in
disguise.” (citing Gonzalez v. Crosby, 545
U.S. 524, 531-32 (2005))); see also Balentine v.
Thaler, 626 F.3d 842, 846-47 (5th Cir. 2010) (“A
state prisoner is not entitled to use Rule 60(b) as a broad
opening for a second request in the federal court to overturn
his conviction. Still, a Rule 60(b) motion, filed several
years after an inmate's Section 2254 application had been
denied, is in some circumstances an available option.”
(citing Gonzalez, 545 U.S. at 528-29)).
In Gonzalez v. Crosby, the Supreme Court
distinguished between a subsequent habeas petition and a Rule
60(b) motion along the lines of substance and procedure. A
motion is substantive - and thus a successive habeas petition
- if it “seeks to add a new ground for relief, ”
or if it “attacks the federal court's previous
resolution of a claim on the merits, since alleging that the
court erred in denying habeas relief on the merits is
effectively indistinguishable from alleging that the movant
is, under the substantive provisions of the statutes,
entitled to habeas relief.” If, however, the motion
challenges “not the substance of the federal
court's resolution of a claim on the merits, but some
defect in the integrity of the federal habeas proceedings,
” then a Rule 60(b) motion is proper.
In re Coleman, 768 F.3d 367, 371 (5th Cir. 2014)
(quoting 545 U.S. at 532; footnotes omitted).
that, in a previous Section 2254 proceeding concerning the
same state conviction and sentence, the federal district
court failed to develop the record through an evidentiary
hearing can be construed as asserting a procedural error.
See, e.g., Pursley, 287 F. App'x at 653
(“In his Rule 60(b) motion, Mr. Pursley contends that
during his initial habeas proceedings, the district court did
not properly address his request to develop a factual record.
To the extent that Mr. Pursley is claiming a procedural error
by the district court, this claim is a ‘true' Rule
60(b) issue, and should be brought as such.” (citing
Gonzalez, 545 U.S. at 532)); Taylor v.
Wetzel, No. 4:CV-04-553, 2014 WL 5242076, at *6-*7 (M.D.
Pa. Oct. 15, 2014) (accepting petitioner's unopposed
“argument that ‘failure to develop' under [28
U.S.C.] § 2254(e)(2) is a procedural ground ‘very
similar' to a procedural default ruling, thereby
permitting [him] to proceed under [a] Rule 60(b)
motion” (emphasis omitted)).
60(b) offers grounds for relief from a final judgment, order,
or proceeding, see Fed. R. ...