IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOSEPH ROLAND LAVE, JR., §

Petitioner, §

§

V. § Civil Action No. 3:00-CV-2137-K

§

WILLIAM STEPHENS, Director, § (Death Penalty Case)

Texas Department of Criminal Justice § 

Correctional Institutions Division, §

Respondent. §

MEMORANDUM OPINION AND ORDER

On May 6, 2015, Petitioner Joseph Roland Lave, Jr., filed a Motion for Relief from

Judgment Pursuant to Rule 60 of the Federal Rules of Civil Procedure (Doc. No. 60). 

The Courtissued an order(Doc. No. 64) onMay 14, 2015, directing RespondentWilliam

Stephens, Director, Texas Department of CriminalJustice CorrectionalInstitutions Division

(“Respondent”) to set forth his position and submit a supporting brief on the threshold

question of whether Lave’s motion constitutes a successive petition for habeas relief under

28 U.S.C. § 2244(b). OnJuly 15, 2015, Respondentfiled his response asserting that Lave’s

motion constitutes a successive petition for habeas relief under 28 U.S.C. § 2244(b). 

The Court agrees.

I

A claim presented in a second or successive habeas corpus application under Section

2254 is subject to dismissal under 28 U.S.C. § 2244, which provides in relevant part, 

 

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(a) No circuit or district judge shall be required to entertain an application

for a writ of habeas corpus to inquire into the detention of a person pursuant

to a judgment of a court of the United States if it appears that the legality

of such detention has been determined by a judge or court of the United

States on a prior application for a writ of habeas corpus, except as provided

in section 2255.

(b)

(1) A claim presented in a second or successive habeas corpus application

under section 2254 that was presented in a prior application shall be

dismissed.

(2) A claim presented in a second or successive habeas corpus

application under section 2254 that was not presented in a prior

application shall be dismissed unless–

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable;

or

(B)

(I) the factual predicate for the claim could not have

been discovered previously through the exercise of due

diligence; and

(ii) the facts underlying the claim, if proven and viewed

in light of the evidence as a whole, would be sufficient

to establish by clear and convincing evidence that, but

for constitutional error, no reasonable factfinder would

have found the applicant guilty of the underlying

offense.

(3)

(A) Before a second or successive application permitted by this

section is filed in the district court, 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.

In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court held that a Rule

60(b) motion constitutes a successive habeas petition under Section 2244 if it presents

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a new claim for relief or attacks the federal court’s previous resolution of a claim on the

merits. Id. at 531-32.

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, notthe substance ofthe federal court’s resolution

of a claim on the merits, but some defect in the integrity ofthe federal habeas

proceedings.

Id. at 532 (footnote omitted). The Fifth Circuit has determined such a “defect in the

integrity of the federal habeas proceeding” could include a “fraud on the court,” but only

in limited circumstances. 

To establish fraud on the court, it is necessary to show an unconscionable

plan or scheme which is designed to improperly influence the court in its

discretion. Generally speaking, only the most egregious misconduct, such

as bribery of a judge or members of a jury, or the fabrication of evidence

by a party in which an attorney is implicated, will constitute a fraud on the

court. Less egregious misconduct, such as nondisclosure to the court offacts

allegedly pertinentto the matter before it, will not ordinarily rise to the level

of fraud on the court.

Fierro v. Johnson, 197 F.3d 147, 154 (5th. Cir. 1999) (quoting First Nat’l Bank of Louisville

v. Lustig, 96 F.3d 1554, 1573 (5th Cir.1996)). Further, in a federal habeas case, it is not

enough to show that state’s attorneys perpetrated a fraud on the state court in obtaining

or defending the underlying conviction. The federal habeas petitioner must show that

the attorneys in the federal proceeding defrauded the federal court. Fierro, 197 F.3d at

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155-56; Hughes v. Thaler, No. Civ.A. H-01-4073, 2012 WL 5456104, at *4 (S.D. Tex.

Nov. 7, 2012). 

The language of Section 2244(b)(3) clearly provides that a district court lacks

jurisdiction to entertain a motion that constitutes a successive habeas petition without

the authorization from the Court of Appeals. 28 U.S.C. § 2244(b)(3);seeBurton v. Stewart,

549 U.S. 147, 157 (2007). 

II

Lave’s motion raises numerous complaints against the prosecutors in the state trial

and habeas proceedings. Lave alleges thatthe trial prosecutor suppressed priorinconsistent

statements from victim Angela King and co-actor TimothyBates. (Mot. at 6.) Lave alleges

that, until 2009,the prosecutor suppressed supplementary reports ofthe RichardsonPolice

Department that contained prior inconsistent statements by King and which would have

supported his efforts to impeach her at trial. (Mot. at 9.) This includes an undisclosed

report by Det. Michael Grice. (Mot. at 10.) Lave also alleges that, until 2009, the

prosecutor suppressed two prior inconsistent statements that King made directly to the

prosecutor. (Mot. at 10-11, 12-13.) Lave also alleges that, until 2009, the prosecutor

suppressed notes of prior inconsistent statements made by King during a walk-through

of the crime scene. (Mot. at 12.) Lave also alleges that, until 2007, the prosecutor

suppressed notes in his own file indicating doubts about King’s memory of the events. 

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(Mot. at 14.) Lave alleges that, until 2014, the prosecutor suppressed medical records

indicating serious memory loss by King. (Mot. at 15.) 

Lave alleges that, until 2007, the prosecutor suppressed prior statements by Bates,

including a statementthat he had hit King on the head with a hammer, before he retracted

that statement. (Mot. at 15-16.) Lave alleges thatthe trial prosecutor suppressed a second

polygraph examination of Bates along with a letterfrom the polygraph examiner outlining

Bates’ deception in response to questions about whether he personally lethally assaulted

any of the victims. (Mot. at 6-7, 16-17.) 

Lave does not show that the Respondent or any attorneys with the Texas Attorney

General knew of the allegedly undisclosed information; he simply alleges that the

exculpatory evidence showing this was revealed by the trial prosecutors beginning in 2007

after the prior federal habeas proceedings concluded. (Mot. at 7.) Lave asserts that the

discovery of this evidence came in response to his repeated requests and diligent attempts

to obtain this information despite its suppression by prosecutors. (Mot. at 17-64.) Lave’s

complaints are directed at the Dallas County District Attorney’s office and state law

enforcement officials leading up to the prosecution and trial of Lave. The only allegations

against Respondent’s counsel in federal court is that they opposed Lave’s requests for

discovery and/or failed to fully investigate the allegations in the original federal habeas

petition,resulting in the denial of discovery in the prior federal habeas proceedings. (Mot.

at 42-55.) Although he asserts that his rights were violated in the federal habeas

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proceeding, and vaguely suggests that a different division of the Texas Attorney General

was somehow involved in the suppression because it responded to a request for advice

on a public records request(Mot. at 17), Lave relies entirely upon allegations of misconduct

against the state prosecutors (Mot. at 2-3, 89-95). Lave asserts that “[t]he central

prevarication in this case is the lead trial prosecutor’s deceit of trial counsel and the trial

court about the status of the case when he convinced trial counsel to have Lave waive

his confrontation rights.” (Mot. at 17.) 

III

Lave attempts to avoid the successive-petition bar by arguing that he is not

complaining of the resolution of the claims against him, instead he is complaining of a

“fraud on the court” by Respondent. (Motion at 95-96 (citing Gonzalez, 545 U.S. at 532

fn. 5.) Despite his claim to the contrary, his allegations attack the substance of this Court’s

prior resolution of his habeas claims, or they are simply new allegations altogether.

In Gonzalez, the Supreme Court specified fraud on the “federal habeas court” as

an example of allegations that attacked the integrity of previous federal habeas proceedings,

not the substance of it. This requires more than merely showing a failure to investigate

or disclose information. Fierro, 197 F.3d at 154. Furthermore, it would notinclude alleged

fraud by prosecutors in state court proceedings. Lave must show fraud on the federal court

by a party and/or attorneys in federal court proceedings. See id. at 155-56. This cannot

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be established merely by showing that exculpatory evidence existed but was not disclosed

by the attorneys for the respondent. 

The attorneys for the Texas Department of Corrections in a federal habeas

case do not act as prosecutors of the crime investigated by the law

enforcement officers. Prosecutors are actively involved in trial preparation,

production of evidence, examination of witnesses, and evaluating the

credibility of prosecution witnesses. Thus prosecutors work hand in hand

with the police in presenting the case before the courts. The attorneys for

the Director of Corrections, however, act in response to a petitioner’s charge

of unlawful detention that usually centers around the larger questions of

the constitutionality ofthe judgments ofthe criminal courts. Although these

attorneys will undoubtedly point to the work of the prosecuting attorneys

to defend the petitioner’s continuing detention, the Director’s attorneys

neither work with the police in a common enterprise, nor are they in the

business of prosecuting crime. Lacking such a connection as part of a

prosecution team, any constructive knowledge of police reports that might

be imputed to the prosecutors cannot be imputed to the state’s attorneys

in a federal habeas case.

Fierro, 197 F.3d at 155-56.

Lave complains the assistant attorney general’s efforts to oppose discovery in this

Court establishes the required “fraud on the court” to allow these proceedings to be

reopened. (Mot. at 42-55.) His argument assumes that Respondent’s attorneys had the

same duty to investigate the case and review the prosecutor’s file for potentially exculpatory

evidence before responding to alleged constitutional violations. Respondent’s attorneys,

however, are entitled to rely on the insufficiency of the allegations and evidence before

this Court and the presumption of correctness afforded the state court findings. See id.

at 155-56. Further, because the state court had denied these claims on their merits,

“evidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim

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has been adjudicated on the merits by a state court, a federal habeas petitioner must

overcome the limitation of § 2254(d)(1) on the record that was before that state court.” 

Cullen v. Pinholster, 563 U.S. 170, 185 (2011). Although Pinholster was not issued until

after the prior habeas proceedings in this Court were concluded, Respondent’s attorneys

were certainly entitled to oppose federal evidentiary development for consistent reasons

without being guilty of perpetrating any fraud. 

Ratherthan “fraud on the court,” this motion presents “‘newly discovered evidence’

... in support of a claim previously denied” to attack the substance of this Court’s prior

resolution of his habeas claims and bring his motion within the ambit of a successive habeas

petition. Gonzalez, 545 U.S. at 531 (citing Rodwell v. Pepe, 324 F.3d 66, 69 (1st Cir. 2003)). 

The motion also presents new claims by making differentfactual allegations than the claims

presented in the original federal habeas petition. For example, Lave complains that the

State suppressed exculpatory evidence of a polygraph examination of Bates, but Lave’s

previous argument did not include the results of a second polygraph examination of Bates

and a letter from the polygraph examiner opining that Bates was deceptive when asked

if he had lethally assaulted any of the victims (Mot. at 6-7, 16-17), or the statement by

Bates (which he retracted) admitting he himself hit King in the head with a hammer (Mot.

at 7, 15). Further, Lave did not previously claim thatthe prosecutor made notes indicating

his own doubts about King’s memory of the events. (Mot. at 14.) Admittedly, Lave may

not have known to make these claims before, but the result is nevertheless the same. A

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motion seeking to add a new ground for relief is a successive petition. See Gonzalez, 545

U.S. at 532.

Lave’s allegations are not sufficient to constitute a “fraud on the court.” But, even

if they were, the new facts presented and alleged would make Lave’s motion a successive

petition for habeas relief under 28 U.S.C. § 2244(b), and Lave did not obtain the required

order from the Court of Appeals authorizing this Court to consider the motion. See 28

U.S.C. § 2244(b)(3).

IV

In a footnote to his motion, Lave appears to move for discovery and production

of records. (Mot. at 3 n.1). Moving for relief in a footnote does not properly place the

issue before this Court. Even if it did, the Court lacks jurisdiction to consider the motion

altogether for the aforementioned reasons.

CONCLUSION

The Court finds that Lave’s Motion for Relief from Judgment Pursuant to Rule

60 of the Federal Rules of Civil Procedure (Doc. No. 60) asserts substantive claims for

habeas relief and does not simply attack the integrity of prior federal habeas proceedings. 

The motion also asserts new claims forrelief. Therefore,the motion constitutes a successive

habeas petition under 28 U.S.C. § 2244(b). Because Lave has not obtained the required

authorization from the Court of Appeals under Section 2244(b)(3), this Court is without

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jurisdiction to entertain Lave’s motion. Therefore, Lave’s motion to set aside the judgment

(Doc. No. 60) is DISMISSED for want of jurisdiction. 

SO ORDERED.

Signed February 11

th

, 2016.

___________________________________

ED KINKEADE

UNITED STATES DISTRICT JUDGE

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