United States District Court, D. Montana, Great Falls Division
ORDER DENYING RULE 60(B) MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
Morris United States District Court Judge.
Caplette, a federal prisoner proceeding pro se, filed a
motion under Federal Rule of Civil Procedure 60(b). He asks
the Court to set aside the judgment denying his first motion
under 28 U.S.C. § 2255. See Rule 60(b) Mot. (Doc. 153)
was charged with aggravated sexual abuse in connection with
the rape of an acquaintance, M., on the Rocky Boy's
Indian Reservation. The rape occurred while M. was home on
leave from the Army. Caplette testified that he and M. had
consensual sex. The jury believed M. and did not believe
Caplette. Caplette is now serving a 210-month prison
sentence, which will be followed by a life term of supervised
release. Judgment was entered on February 24, 2009. See
Indictment (Doc. 1); Verdict (Doc. 65); Judgment (Doc. 77).
an unsuccessful appeal, see Mem. Disp. at 3, United
States v. Caplette, No. 09-30081 (9th Cir. Feb. 17,
2010) (Doc. 98), Caplette retained attorney Penelope S.
Strong to file a motion collaterally attacking his conviction
under 28 U.S.C. § 2255. Judge Haddon, who presided at
trial and sentencing, denied the § 2255 motion and a
certificate of appealability (Doc. 121). The Court of Appeals
denied a certificate of appealability on November 8, 2012.
See Order at 1, United States v. Caplette, No.
12-35756 (9th Cir. Nov. 8, 2012) (Doc. 124).
April 3, 2013, Caplette, proceeding pro se, wrote a letter to
Judge Haddon, who construed the letter as a motion under
Fed.R.Civ.P. 60(b), denied it, and denied a certificate of
appealability (Doc. 126). Caplette did not appeal.
quite a year later, Caplette filed a second motion under
Fed.R.Civ.P. 60(b). This Court denied the motion and a
certificate of appealability (Doc. 133). Caplette appealed.
On December 3, 2014, the Court of Appeals summarily affirmed
this Court's decision (Doc. 142).
September 8, 2015, Caplette moved the Court for a new trial.
He claimed that new evidence he discovered on June 22, 2015,
showed both that M.'s testimony at trial differed from a
statement she gave before trial to an Army investigator and
that the prosecution suppressed her statement. See Mot. for
New Trial (Doc. 144) at 1, 4-5 ¶ 7. After full briefing,
the Court denied the motion for new trial, denied the motion
construed as a Rule 60 motion, and dismissed the motion
construed as a second or successive motion under 28 U.S.C.
§ 2255. See Order (Doc. 152) at 5-11. Caplette did not
now files his fourth Rule 60 motion. The motion asks the
Court to consider again whether his first proceeding under
§ 2255 was fair and to consider again whether he is
entitled to relief under § 2255. The Court has three
times considered reopening Caplette's first § 2255
motion to provide him relief from his attorney's
negligence in that proceeding. The law does not support
relief. See Order (Doc. 152) at 7-10; Order (Doc. 133) at
2-12; Order (Doc. 126) at 2-4.
extent Caplette claims that he is entitled to relief under
§ 2255, his Rule 60 motion is an improper and
unauthorized second or successive § 2255 motion. See
Gonzalez v. Crosby, 545 U.S. 524, 530-32 & n.5
(2005). Caplette asserts that he is actually innocent, see
Rule 60(b) Mot. (Doc. 153) at 8, but he provides no evidence
supporting his assertion. More fundamentally, even if he
presented conclusive proof that he did not commit aggravated
sexual abuse, this Court would have no jurisdiction to
consider it. Caplette has not obtained leave from the Ninth
Circuit Court of Appeals to file a second § 2255 motion
in this Court. See 28 U.S.C. § 2244(b)(3)(A); Burton
v. Stewart, 549 U.S. 147, 149 (2007) (per curiam).
certificate of appealability, see 28 U.S.C. § 2253(a);
United States v. Winkles, 795 F.3d 1134, 1142 (9th
Cir. 2015), is not warranted. No reasonable jurist could find
that Caplette's fourth Rule 60(b) motion supports relief
on grounds already rejected three times. To the extent the
motion seeks relief under § 2255, it is plainly
controlled by Gonzalez v. Crosby, 545 U.S. 525
(2005), and Burton v. Stewart, 549 U.S. 147 (2007).
IT IS HEREBY ORDERED as follows:
Caplette's Rule 60(b) motion (Doc. 153) is DENIED.
the extent Caplette claims he is entitled to relief under
§ 2255, the Rule 60(b) motion is DISMISSED for lack of
jurisdiction as an ...