3:19-cv-02065•Gassaway v. Director, TDCJ-CID
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION KELVIN LEE GASSAWAY, § TDCJ No. 1461005, § § Petitioner, § § V. § No. 3:19-cv-2065-N-BN § DIRECTOR, TDCJ-CID, § § Respondent. § FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE The Court entered judgment dismissing Petitioner Kelvin Lee Gassaway’s pro se application for a writ of habeas corpus under 28 U.S.C. § 2254 with prejudice as time barred. See Gassaway v. Davis, No. 3:19-cv-2065-N-BN, 2020 WL 3038582 (N.D. Tex. Feb. 26, 2020), rec. accepted, 2020 WL 3036550 (N.D. Tex. June 5, 2020), C.O.A. denied, No. 20-10734 (5th Cir. June 21, 2021) [Dkt. Nos. 10, 19, 20, 28]. Gassaway then filed a motion for leave to file a second or successive Section 2254 application in the United States Court of Appeals for the Fifth Circuit, which the Fifth Circuit denied in part, noting that Gassaway also argues that his initial habeas proceeding was improperly dismissed as time barred. To the extent that Gassaway wishes to raise errors regarding whether the statute of limitations should have been tolled in the prior habeas proceedings, such contentions fall under the purview of Federal Rule of Civil Procedure 60(b) and do not require authorization. In re Gassaway, No. 21-11181 (5th Cir. Mar. 30, 2022) (per curiam) (citing Gonzalez v. Crosby, 545 U.S. 524, 532 n.4 (2005)) [Dkt. No. 30]. Case 3:19-cv-02065-N-BN Document 47 Filed 12/15/25 Page 1 of 6 PageID <pageID>
- 2 - In February 2023, Gassaway returned to the district court to request that, under Federal Rules of Civil Procedure 59(e) and 60(b), the Court reconsider its dismissal of his habeas application as time barred. See Dkt. No. 31. The Court denied the motion. See Gassaway v. Davis, No. 3:19-cv-2065-N-BN, 2023 WL 3046353 (N.D. Tex. Feb. 14, 2023), rec. accepted, 2023 WL 3047398 (N.D. Tex. Apr. 21, 2023), C.O.A. denied, No. 23-10519 (5th Cir. July 21, 2023) [Dkt. Nos. 32, 40, 44]. Gassaway has now filed a second motion under Federal Rules of Civil Procedure 60(b) and 60(d), claiming the judgment should be set aside for fraud on the court because of an allegedly forged state court indictment. This case remains referred to the undersigned United States magistrate judge under 28 U.S.C. § 636(b) and a standing order of reference from Senior United States District Judge David C. Godbey. And the undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should deny the motion without prejudice. Discussion “A state prisoner is entitled to one fair opportunity to seek federal habeas relief from his conviction. But he may not usually make a ‘second or successive habeas corpus application.’” Banister v. Davis, 140 S. Ct. 1698, 1702 (2020) (quoting 28 U.S.C. § 2244(b)). As such, Section 2244 lays out the requirements for filing successive petitions, serving as gate- keeper by preventing the repeated filing of habeas petitions that attack the prisoner’s underlying conviction. The statute does not define “second or successive,” however, and we have made clear that a petition is not “second or successive” merely because it is numerically second. ... Case 3:19-cv-02065-N-BN Document 47 Filed 12/15/25 Page 2 of 6 PageID <pageID>
- 3 - Later habeas petitions attacking the same judgment that was attacked in a prior petition tend to be labeled successive and must meet the standards for authorization under § 2244. In contrast, later habeas petitions attacking distinct judgments, administration of an inmate’s sentence, a defective habeas proceeding itself, or some other species of legal error – when the error arises after the underlying conviction – tend to be deemed non-successive. In essence, if the purported defect existed, or the claim was ripe, at the time of the prior petition, the later petition is likely to be held successive even if the legal basis for the attack was not. If, however, the purported defect did not arise, or the claim did not ripen, until after the conclusion of the previous petition, the later petition based on that defect may be non-successive. Leal Garcia v. Quarterman, 573 F.3d 214, 220, 222 (5th Cir. 2009) (footnotes omitted). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “requires a prisoner to obtain authorization from the federal appellate court in his circuit before he may file a ‘second or successive’ petition for relief in federal district court. Without such authorization, the otherwise-cognizant district court has no jurisdiction to entertain a successive § 2254 petition.” Id. at 219 (footnotes omitted). As the Fifth Circuit has explained, “[b]ecause of the comparative leniency of Rule 60(b), petitioners sometimes attempt to file what are in fact second-or-successive habeas petitions under the guise of Rule 60(b) motions.” In re Edwards, 865 F.3d 197, 203 (5th Cir. 2017). If a Rule 60(b) motion “either: (1) presents a new habeas claim (an ‘asserted federal basis for relief from a state court’s judgment of conviction’), or (2) ‘attacks the federal court’s previous resolution of a claim on the merits,’ … it should be treated as a second-or-successive habeas petition and subjected to AEDPA’s limitation on such petitions.” Id. at 203-04 (quoting Gonzalez v. Crosby, 545 U.S. 524, 530 (2005)). “A federal court resolves the claim on the merits when it determines that there are or are not ‘grounds entitling a petitioner to habeas corpus relief under 28 Case 3:19-cv-02065-N-BN Document 47 Filed 12/15/25 Page 3 of 6 PageID <pageID>
- 4 - U.S.C. §§ 2254(a) and (d),’ as opposed to when a petitioner alleges ‘that a previous ruling which precluded a merits determination was in error—for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.’” Id. at 204 (quoting Gonzalez, 545 U.S. at 532 n.4). Gassaway’s motion asserts a substantive claim that his state conviction was fraudulent because the state indictment was forged and no grand jury was impaneled based on a pre-AEDPA case. See Dkt. No. 45. He couches this claim in the language of a true 60(b) motion claiming that his motion is not an attack on his conviction but that the forged indictment constitutes fraud on the federal court affecting the integrity of the federal habeas proceedings. See id. at 4-5. But “[u]sing Rule 60(b) to present new claims for relief from a state court's judgment of conviction – even claims couched in the language of a true Rule 60(b) motion – circumvents AEDPA's requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts.” Gonzalez, 545 U.S. at 531 (2005). Gassaway’s motion seeks to add a new ground for relief relating to an allegedly forged indictment, compare Dkt. No. 45, with Dkt. No. 1, so it is not a true Rule 60(b) motion. And although the district court dismissed his habeas petition as barred by limitations rather than on the merits, Gassaway’s motion is properly treated as a successive habeas corpus application. See In re Flowers, 595 F.3d 204, 205 (5th Cir. 2009) (second application was successive even though first application was dismissed as time barred where claims “were or could have been raised in” first application). In sum, Gassaway’s second Rule 60(b) motion should be treated as a successive Case 3:19-cv-02065-N-BN Document 47 Filed 12/15/25 Page 4 of 6 PageID <pageID>
- 5 - habeas corpus application. And Gassaway’s failure to obtain authorization from the Fifth Circuit under 28 U.S.C. § 2244(b)(3) deprives this Court of jurisdiction to consider the current habeas application. See Leal Garcia, 573 F.3d at 219. The Court could cure this want of jurisdiction by transferring this application to the Fifth Circuit for appropriate action. See 28 U.S.C. § 1631. But, given Gassaway’s history of filing Rule 60(b) motions aimed at his state conviction, “a dismissal without prejudice appears more efficient and better serves the interests of justice than a transfer in this instance.” United States v. King, Nos. 3:97-cr-0083-D-01 & 3:03-cv-1524-D, 2003 WL 21663712, at *1 (N.D. Tex. July 11, 2003). Recommendation Because Petitioner Kelvin Lee Gassaway’s second pro se motion under Federal Rule of Civil Procedure 60(b) [Dkt. No. 45] seeks substantive habeas relief, the Court should construe it as an unauthorized successive habeas application and deny it without prejudice to Gassaway’s right to seek authorization from the United States Court of Appeals for the Fifth Circuit to file a successive habeas application. The Court also should direct the Clerk of the Court to open for statistical purposes a new Section 2254 case (nature of suit 530 directly assigned, per Special Order 3-250, to Senior United States District Judge David C. Godbey and United States Magistrate Judge David L. Horan) and to close the same on the basis of any order accepting this recommendation. A copy of these findings, conclusions, and recommendation shall be served on Case 3:19-cv-02065-N-BN Document 47 Filed 12/15/25 Page 5 of 6 PageID <pageID>
- 6 - all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). DATED: December 15, 2025 _________________________________________ DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE Case 3:19-cv-02065-N-BN Document 47 Filed 12/15/25 Page 6 of 6 PageID <pageID>
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