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Tanksley v. Davis

United States District Court, N.D. Texas, Dallas Division

February 8, 2018

MYRON TANKSLEY (TDCJ No. 1002421), Petitioner,
LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Division, [1]Respondent.



         Petitioner 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.

         This 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.

         The 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.

         Applicable Background

         The 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).

         Legal Standards and Analysis

         “When 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).

         A claim 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)).

         Rule 60(b) offers grounds for relief from a final judgment, order, or proceeding, see Fed. R. ...

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