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Wadlington v. Smith

United States District Court, W.D. Kentucky

October 27, 2017



          Thomas B. Russell, Senior Judge

         This matter comes before the Court upon motion from Petitioner Devron Wadlington (“Petitioner”) seeking relief under Federal Rule of Civil Procedure 60(b). [DN 35.] Respondent Aaron Smith (“Respondent”) has responded, [DN 36], and the time has passed for a reply. For the following reasons, four of Petitioner's Rule 60(b) claims will be DENIED and three of his claims will be transferred to the Sixth Circuit Court of Appeals as second or successive § 2254 claims.

         I. BACKGROUND

         Petitioner was convicted of wanton murder in Trigg County, Kentucky Circuit Court. The following factual summary is taken from the Kentucky Court of Appeals' first opinion in Petitioner's case:

Wadlington and a codefendant, George Kelly Mayes, were indicted and jointly tried for the murder of LaWarren O'Keith Sims. Sims was shot and killed in a crowded altercation outside Henry's Place, a nightclub in Trigg County. The evidence presented at trial revealed that no eyewitness positively identified Sims's shooter, and the bullet that killed Sims was never found. Eyewitnesses testified to seeing Mayes pull a gun from his waistband when confronted by Anthony Wilson, a patron of Henry's Place. Other eyewitnesses testified to seeing Mayes and Wadlington shooting guns into a crowd or into the air. Another witness testified that she saw Wadlington holding a 9mm gun during the altercation.
James Rodell Acree testified that he drove Mayes, Wadlington, and others to Henry's Place. Following the altercation, Acree drove Mayes and Wadlington to Cadiz. He testified that Mayes fired shots from the car window while leaving the scene. Also while in the car, Acree overheard Mayes ask Wadlington, “did you hit him?” Acree helped Mayes clean out his car, in which they found a Budweiser box which contained a bullet. They threw the box and bullet into a field. Billy Alexander testified that he found a handgun near his home after Mayes had stopped by. Alexander threw the gun into a field near his house.
Acree and Alexander eventually led police to the field which contained the Budweiser box, a .45 handgun with a bullet in the chamber, a .45 bullet, and a 9mm handgun that was wrapped in a black t-shirt and mask under the seat of an abandoned vehicle. Police also searched the area around Henry's Place and found .45 shell casings and a 9mm casing nearby. An FBI weapons expert testified that the .45 shell casings recovered came from the .45 gun found by the police, but that the 9mm shell casing did not come from the recovered 9mm gun.
Counsel for Wadlington cross-examined both Acree and Alexander regarding their status as convicted felons, their incomplete statements to police, their expectations of getting favorable treatment in return for their cooperation, and Acree's admission to being high on the night of the shooting. No proof was introduced for Wadlington at the close of the Commonwealth's case. The trial court instructed the jury to decide whether Mayes and Wadlington were guilty, either individually or acting in complicity with the other, of murdering Sims; of wanton murder; or of a lesser degree of homicide. The jury convicted both of wanton murder.

Wadlington v. Commonwealth, No. 2011-ca-001260-MR, 2013 WL 1003490, at *1 (Ky. Ct. App. Mar. 15, 2013) (Wadlington II). The Kentucky Supreme Court affirmed Petitioner's conviction on direct appeal. Wadlington v. Commonwealth, No. 2006-SC-000640-MR, 2008 WL 1003490 (Ky. Oct. 23, 2008) (Wadlington I).

         After a lengthy procedural history in the Kentucky state court system, Petitioner filed a 28 U.S.C. § 2254 petition with this Court. It was referred to a Magistrate Judge for findings of fact, conclusions of law, and a recommendation. The Magistrate Judge recommended that Petitioner's petition be denied in its entirety. This Court adopted the Magistrate Judge's recommendation, overruled Petitioner's two objections thereto, and dismissed his petition. [See DN 23, 24.] Now, Petitioner has filed a Motion for relief under Federal Rule of Civil Procedure 60(b).


         The first determination the Court must make is whether Petitioner's Rule 60(b) motion is actually a motion under that rule, or whether, practically speaking, it is a second or successive petition for a writ of habeus corpus pursuant to 28 U.S.C. § 2254. See Gonzalez v. Crosby, 545 U.S. 524, 526 (2005). If a Rule 60(b) motion is determined to be a second or successive petition, the Court “would apply 28 U.S.C. § 2244(b), which presents a bar to the motion.” Tyler v. Anderson, 749 F.3d 499, 506 (6th Cir. 2012) (citing Gonzalez, 545 U.S. at 531). Before district courts may consider second or successive petitions under § 2254, “the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

         The Supreme Court in Gonzalez explained that of crucial import to the issue of whether a motion should be considered “second or successive” is the question of whether the motion presents a “claim.” Id. at 530. A claim “is an asserted federal basis for relief from a state court's judgment of conviction.” Id. Thus, “[w]hen no ‘claim' is presented, there is no basis for contending that the Rule 60(b) motion should be treated like a habeus corpus application.” Id. at 533.

In most cases, determining whether a Rule 60(b) motion advances one or more "claims" will be relatively simple. A motion that seeks to add a new ground for relief, . . .will of course qualify. A motion can also be said to bring a "claim" 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. That is not the case, however, when a Rule 60(b) motion attacks, not the substance ...

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