Gassaway v. Director, TDCJ-CID

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].
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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.
...
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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
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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
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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
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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
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