Dixon v. Clark, No. 3:2012cv00429 - Document 39 (E.D. Va. 2018)

Court Description: MEMORANDUM OPINION. Read Opinion for complete details. Signed by District Judge M. Hannah Lauck on 06/08/2018. Copy mailed to Petitioner as directed.(ccol, )

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Dixon v. Clark Doc. 39 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MARCUS LE'SHAWN DIXON, Petitioner, Civil Action No. 3:12CV429 v. HAROLD W. CLARK, Respondent. MEMORANDUM OPINION Marcus Le'Shawn Dixon, a Virginia prisoner proceeding prose, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 with this Court. In his§ 2254 Petition, Dixon raised the following grounds for relief: Claim 1 The prosecutor engaged in misconduct. (a) "(T]he prosecutor made improper comments during closing arguments." (Mem. Supp. § 2254 Pet. 3, ECF No. 2.) (b) "(T]he prosecutor presented repetitious cross-examination of prejudicial collateral matters of the sells [sic] of crack cocaine." (Id. at 6 (citation omitted).) (c) "(T]he prosecutor excercised [sic] bias by striking ... African-American jurors, preventing them [from] serv[ing] in petitioner's trial, who is also AfricanAmerican." (Id. at 8.) Claim 2 Dixon failed to receive the effective assistance of counsel before and during his trial. (a) "Dixon's counsel prejudiced him with the direct examination of prejudicial collateral matters of crack cocain[e]." (Id at 12 (citation omitted).) (b) "Petitioner's counsel prejudiced him when counsel failed to object when the prosecutor cross-examined petitioner about the same prejudicial collateral matters of crack cocaine." (Id at 14.) (c) "Dixon's counsel's performance prejudiced him when he failed to object to the prosecutor's improper statements during the closing arguments." (Id at 15 (citations omitted).) (d) "Dixon's counsel was ineffective when he failed to object to the meritless nolle prosequi of indictments in the Gen. Dist. Court which deprived him of [the] right to a preliminary hearing." (Id at 18.) (e) "Petitioner's counsel was ineffect[ive] and prejudiced petitioner when he failed to object to the prosecutor's ... peremptory challenges to remove AfricanAmericanjurors." (Id at 21.) Dockets.Justia.com Claim 3 Insufficient evidence supported Dixon's participation in the crimes. (See id at 25.) Claim 4 "The trial court denied petitioner Dixon Due Process of Law by allowing prior consistent statements on topics that the witnesses were not impeached by prior inconsistent statements ...." (Id. at 30.) Claim 5 Dixon received the ineffective assistance of counsel at sentencing. (a) Counsel failed "to present any mitigating evidence." (Mot. Amend 3 (ECF No. 14) (citation omitted).) (b) Counsel allowed "petitioner to waive Presentence Investigation Report." (Id. at 6.) Dixon v. Clark, No. 3:12CV429, 2013 WL 4880465, at *1 (E.D. Va. Sept. 12, 2013) (alterations in original) (footnotes omitted). By Memorandum Opinion and Order entered on September 12, 2013, the Court dismissed Claims l(aHc) and 4 as procedurally defaulted, and dismissed the remaining claims as lacking in merit. (Id at *3-10.) The matter is before the Court on Dixon's Motion for Relief Under Rule 60(b)(6) ("Rule 60(b) Motion," ECF No. 37.) For the reasons set forth below, the Rule 60(b) Motion will be DENIED. I. General Parameters for Rule 60(b)(6) Relief Federal Rule of Civil Procedure 60(b) allows a court to "relieve a party ... from a final judgment, order, or proceeding." Fed. R. Civ. P. 60(b). It is an extraordinary remedy requiring a showing of exceptional circumstances. Mayfield v. Nat'/ Ass 'nfor Stock Car Auto Racing, Inc., 674 F.3d 369,378 (4th Cir. 2012) (citing Ackermann v. United States, 340 U.S. 193,202 (1950)). The party seeking relief under Rule 60(b) "must make a threshold showing of timeliness, 'a meritorious claim or defense,' and lack of unfair prejudice to the opposing party." Coleman v. Jabe, 633 F. App'x. 119, 120 (4th Cir. 2016) (quoting Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir.2011)). A party must also demonstrate "exceptional circumstances." Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993) (quoting Werner v. 2 Carbo, 731 F.2d 204, 207 (4th Cir. 1984)). After a party satisfies this threshold showing, "he [or she] then must satisfy one of the six specific sections of Rule 60(b)." Id. (quoting Werner, 731 F.2d at 207). Federal Rule of Civil Procedure 60(b)(6) permits a court to grant relief for "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6). Rule 60(b)(6) requires that the movant "show 'extraordinary circumstances' justifying the reopening of a final judgment." Shanklin v. Seals, No. 3:07cv319, 2011 WL 2470119, at *2 (E.D. Va. June 21, 2011) (quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). As pertinent here, courts have held that "[i]ntervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)." Agostini v. Felton, 521 U.S. 203,239 (1997). II. Analysis of Dixon's Demand for Rule 60{b){6) Relief Here, Dixon challenges the dismissal of Claims I (a)-(c) and 4 as procedurally defaulted. (Mem. Supp. Rule 60(b) Mot. 2, ECF No. 38.) Dixon vaguely suggests that such dismissal was incorrect in light of the decision in Martinez v. Ryan, 566 U.S. 1 (2012). "The decision in Martinez 'relates to excusing a procedural default of ineffective-trial-counsel claims in an initial § 2254 petition .... "' Ward v. Clarke, No. 3:14CV1 I-HEH, 2014 WL 5795691, at *3 (E.D. Va. Nov. 6, 2014)(quoting Lambrix v. Sec'y, Fla. Dep 'I Corr., 756 F.3d 1246, 1260 (11th Cir. 2014)). It is unclear why Dixon believes Martinez undermines the finding of procedural default with respect to Claims 1(a)-( c) and 4. These are not ineffective assistance of counsel claims and therefore are ostensibly outside of the reach of Martinez. Nevertheless, no need exists to ascertain Dixon's exact theory for relief because, as explained below, his Rule 60(b) Motion is 3

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