Desmond Rouse; Jesse Rouse v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 20-2007
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Desmond Rouse; Jesse Rouse
lllllllllllllllllllllPlaintiffs - Appellants
v.
United States of America
lllllllllllllllllllllDefendant - Appellee
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No. 20-2015
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Russell Hubbeling
lllllllllllllllllllllPlaintiff - Appellant
v.
United States of America
lllllllllllllllllllllDefendant - Appellee
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Appeals from United States District Court
for the District of South Dakota - Southern Division

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Submitted: April 16, 2021
Filed: September 16, 2021
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Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
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LOKEN, Circuit Judge.
In 1994, after a three-week trial, the jury convicted Desmond and Jesse Rouse,
their cousin Russell Hubbeling, and another cousin of sexually abusing five nieces.
After a hearing, the district court1 denied defendants’ post-trial motion for new trial
based on the alleged anti-Native American bias of one juror. On direct appeal, we
affirmed the convictions and the denial of a new trial. United States v. Rouse, 111
F.3d 561, 565 (8th Cir.), reconsidering 100 F.3d 560 (8th Cir. 1996), cert. denied, 522
U.S. 905 (1997) (“Rouse I”). In 1999, defendants filed a second motion for new trial
alleging that the four victims who testified at trial recanted allegations of sex abuse.
See Fed. R. Crim. P. 33(b)(1). The district court denied this motion after a four-day
evidentiary hearing, finding “no reasonable probability that the recantations would
produce an acquittal if a new trial were held.” United States v. Rouse, 329 F. Supp.
2d 1077, 1092 (D.S.D. 2004). We again affirmed. United States v. Rouse, 410 F.3d
1005, 1009 (8th Cir. 2005) (“Rouse II”).
In 1998, Hubbeling filed a motion to vacate, set aside or correct his sentence
under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. The district court
denied the motion on the merits; we affirmed. Hubbeling v. United States, 288 F.3d
363 (8th Cir. 2002). Jesse Rouse filed a § 2255 petition in 1998 alleging ineffective
1The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
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assistance of counsel. This petition was dismissed as untimely. Desmond Rouse’s
§ 2255 petition, filed in 2006, was also dismissed as untimely.
In 2018, each defendant applied to this court for authorization to file a second
or successive § 2255 motion to vacate or set aside his sentence. See 28 U.S.C.
§§ 2244(b)(3), 2255(h). The grounds alleged were (i) “new forensic medical science”
establishes their convictions were based on the government’s “outdated, false,
misleading, and inaccurate” forensic medical evidence, (ii) the “new rule” announced
in Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), will permit them at a new trial
to “investigate whether their convictions were based upon overt [juror] racism,” and
(iii) the now adult victims have again recanted. Therefore, they are entitled to
successive habeas relief under McQuiggen v. Perkins, 569 U.S. 383 (2013), because
they are “probably actually innocent.” We summarily denied the applications.
Represented by the same attorneys, Desmond and Jesse Rouse and Hubbeling
(hereafter referred to collectively as “Appellants”) returned to the district court and
raised these same claims in Rule 60(b)(6) motions seeking relief from the dismissal
of their initial § 2255 motions. After argument, the district court denied the Rule
60(b)(6) motions, concluding (i) the Rule 60(b)(6) motions are successive § 2255
motions not authorized by the Eighth Circuit; (ii) even considering the adult
recantations and new expert opinions regarding forensic medical evidence, “this
Court does not find that the requirements for an actual innocence claim have been
satisfied”; and (iii) “[Appellants] have not shown extraordinary circumstances to
justify relief under Rule 60(b)(6).” The court granted certificates of appealability
regarding whether the Rule 60(b)(6) motions are second or successive § 2255
motions. Desmond and Jesse Rouse and Hubbeling separately appealed. We
consolidated the appeals and now affirm.
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I. Rule 60(b)(6) Motions by Federal Habeas Petitioners
Federal Rule of Civil Procedure 60(b)(6) authorizes courts to grant relief from
final judgments for “any other reason that justifies relief.” A Rule 60(b)(6) motion
“must be made within a reasonable time.” Rule 60(c)(1). A defendant must present
“extraordinary circumstances” to justify relief. Davis v. Kelley, 855 F.3d 833, 835
(8th Cir. 2017), quoting Buck v. Davis, 137 S. Ct. 759, 772 (2017). Rule 60(b)(6)
extraordinary circumstances “rarely occur in the habeas context.” Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005). Appellants argue their new evidence of juror bias
and actual innocence creates the extraordinary circumstances necessary for Rule
60(b)(6) relief.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposed
significant restrictions on second or successive state habeas corpus applications and
their federal counterpart, § 2255 motions for post-conviction relief. See 28 U.S.C.
§§ 2244(b), 2255(h); Baranski v. United States, 880 F.3d 951, 954-55 (8th Cir. 2018).
Under AEDPA, any claim adjudicated in a prior petition “shall be dismissed,”
§ 2244(b)(1). A claim not previously adjudicated “must be dismissed unless it relies
on either a new and retroactive rule of constitutional law or new facts showing a high
probability of actual innocence.” Gonzalez, 545 U.S. at 530, citing § 2244(b)(2).
Though AEDPA did not directly circumscribe Rule 60(b), the Supreme Court held
in Gonzalez that the restrictions in § 2244(b) apply to Rule 60(b) motions that present
“new claims for relief.” Id. at 531. The Court expressly included in this class of Rule
60(b) motions those that “seek leave to present ‘newly discovered evidence’ . . . in
support of a claim previously denied,” and those that “contend that a subsequent
change in substantive law is a ‘reason justifying relief.’” Id. By contrast, no “claim”
is presented when a Rule 60(b) motion only attacks “some defect in the integrity of
the federal habeas proceedings.” Id. at 532; see Ward v. Norris, 577 F.3d 925, 933
(8th Cir. 2009), cert. denied, 559 U.S. 1051 (2010).
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Appellants argue their 60(b)(6) motions are not second or successive § 2255
motions. They contend the motions challenge the procedural bases that precluded
prior merits determinations, rather than attacking the merits of the prior decisions.
The Rouses claim the denial of their petitions as untimely under AEDPA’s one-year
statute of limitations was improper in light of McQuiggen. Hubbeling argues his
initial § 2255 petition was not resolved on the merits because he was unable to bring
evidence that is now admissible under Peña-Rodriguez. We reject these contentions
for multiple reasons.
First, as previously noted, the grounds Appellants assert for Rule 60(b) relief --
“newly discovered evidence . . . in support of a claim previously denied,” and “a
subsequent change in substantive law . . . justifying relief” -- fall squarely within the
class of Rule 60(b) claims to which the Supreme Court applied § 2244(b) restrictions
in Gonzalez. Appellants implicitly admitted as much when they applied to this court
for authorization to file second or successive § 2255 motions seeking the same relief.
The requirement in § 2244(b)(3) that courts of appeals first certify compliance with
§ 2244(b)(2) before a district court can accept a motion for second or successive relief
applies to Rule 60(b)(6) motions that include second or successive claims. See Boyd
v. United States, 304 F.3d 813, 814 (8th Cir. 2002), cert. denied, 538 U.S. 953 (2003).
“[I]nmates may not bypass the authorization requirement of 28 U.S.C. § 2244(b)(3)
for filing a second or successive § 2254 or § 2255 action by purporting to invoke
some other procedure.” United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir.),
cert. denied, 545 U.S. 1135 (2005).
Our prior denial of authorization did not sanction Appellants’ repackaging of
their claims in Rule 60(b)(6) motions to the district court. The motions are improper
attempts to circumvent the procedural requirements of AEDPA.2
2We summarily denied Appellants’ requests for § 2244(b)(3) authorization.
When a three-judge panel determines that a request does not present a claim for which
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Second, the juror bias, recantation, and evidentiary issues raised in Appellants’
purported Rule 60(b)(6) motions were not raised in their initial § 2255 motions.
Those issues were raised in multiple Rule 33 motions for new trial, rejected on the
merits by the district court, and affirmed on direct appeal. If Appellants had raised
these claims in timely § 2255 motions, they would have been summarily dismissed
because “claims which were raised and decided on direct appeal cannot be relitigated
on a motion to vacate pursuant to 28 U.S.C. § 2255.” Davis v. United States, 673
F.3d 849, 852 (8th Cir. 2012) (quotation omitted). Therefore, the fact that the initial
§ 2255 motions were dismissed as untimely is irrelevant. These are new claims under
Gonzalez and are therefore second or successive within the meaning of § 2244(b).
Third, Appellants presumably did not assert their present claims under Rule 33
because Rule 33 motions based on newly discovered evidence are subject to a three-
year statute of limitations and require a showing of five factors that are strictly
enforced because such motions are viewed with disfavor. See Rule 33(b)(1); Rouse
II, 410 F.3d at 1009; United States v. Bell, 761 F.3d 900, 911-12 (8th Cir.), cert.
denied, 574 U.S. 1001 (2014). Proceeding instead under § 2255, Appellants ignore
an important Eighth Circuit principle: “When newly discovered evidence is the
ground for a § 2255 motion, the district court should apply the same substantive test
which governs a motion for a new trial under Fed. R. Crim. P. 33 premised upon the
same ground.” Lindhorst v. United States, 585 F.2d 361, 365 n.8 (8th Cir. 1978).
And Rule 60(b) relief from a § 2255 denial requires that the motion “is made within
a reasonable amount of time and presents extraordinary circumstances.” Williams v.
authorization is required, our Judgment will recite that the request “is denied as
unnecessary.” See Crouch v. Norris, 251 F.3d 720, 725 (8th Cir. 2001). If there is
a risk the motion may become time-barred, we will transfer the request to the district
court for consideration as a Rule 60(b) motion or a first § 2255 motion. Thus, at least
arguably, our summary denial of authorization could be deemed to preclude
Appellants’ subsequent, identical motions for Rule 60(b) relief. But the government
has not raised this issue, so we do not decide it.
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Kelley, 854 F.3d 1002, 1008 (8th Cir. 2017). Presenting evidence of a third round
of victim recantations and a new set of defense experts to debunk the government’s
forensic medical evidence almost twenty-five years after the trial hardly satisfies
these demanding standards.
Fourth, neither McQuiggen nor Peña-Rodriguez supports Appellants’ claims
for Rule 60(b)(6) relief. In McQuiggen, applying its prior decision in Schlup v. Delo,
513 U.S. 298 (1995), the Supreme Court held that an adequate showing of actual
innocence3 will serve as a “gateway” that allows a defendant to bring an ineffective
assistance of counsel claim otherwise barred by AEDPA’s one-year statute of
limitations. 569 U.S. at 386. The Rouses, whose initial § 2255 motions were
dismissed as untimely, argue that this change in the law invalidates their procedural
default, permitting Rule 60(b)(6) relief based on their evidence of actual innocence.
The district court concluded this change in the law was irrelevant because
Appellants are asserting freestanding claims of actual innocence, not using evidence
of actual innocence as a “gateway” to assert constitutional claims under Schlup.4 As
previously explained, we conclude the timeliness issue is irrelevant for different
reasons. Moreover, Appellants urge us to construe McQuiggen far more broadly than
the Supreme Court’s reasoning supports. “[T]he holding in McQuiggen was based
on the Supreme Court’s conclusion that Congress, through its silence on the issue,
had not intended to eliminate the pre-existing equitable ‘actual innocence’ exception
for an untimely first-time filer.” Amerson v. United States, 2014 WL 5017938, No.
3Actual innocence claims must be supported by “new reliable evidence . . . that
was not presented at trial” and convinces the court it is “more likely than not that no
reasonable juror would have convicted him in light of the new evidence.” Id. at 324,
327. This “demanding” standard of proof will only be successful in “extraordinary”
circumstances. House v. Bell, 547 U.S. 518, 538 (2006).
4As the district court noted, it an open question whether such freestanding
claims of actual innocence are cognizable. See McQuiggen, 569 U.S. at 392.
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4:14 CV 1644, Mem. & Order at *2 (E.D. Mo. Oct. 7, 2014). But the Court
recognized that Congress in § 2244(b) intended to “constrain” the actual innocence
exception for second or successive petitions. Id. We decline Appellants’ invitation
to broaden McQuiggen contrary to the principles of finality underlying § 2244(b).
In Peña-Rodriguez, the Supreme Court held that the long-standing “no
impeachment rule” reflected in Federal Rule of Evidence 606(b), which bars
questions or testimony regarding comments made inside the jury room during
deliberations, does not apply “when, after the jury is discharged, a juror comes
forward with compelling evidence that another juror made clear and explicit
statements indicating that racial animus was a significant motivating factor in his or
her vote to convict.” 137 S. Ct. at 861.
After trial, Appellants moved for a new trial based on allegations by Verna
Severson (now Verna Boyd), a co-worker of juror Pat Pickard, that Pickard had
admitted that anti-Native American prejudice influenced her decision to convict.
After four evidentiary hearings at which Boyd, Pickard, the jury foreperson, an
alternate juror, and Pickard’s co-workers testified, the district court denied the
motion, finding that “as between juror Pickard and Ms. Severson, juror Pickard [was]
the more credible witness,” and that credible testimony of the foreperson and alternate
juror showed that “no improper outside influence affected the jury.” We affirmed that
ruling. Rouse I, 111 F.3d at 573. Appellants argue that Peña-Rodriguez’s change in
the law renders denial of their motion for new trial fundamentally flawed because
they were barred from questioning jurors about the influence of anti-Native American
bias on the verdict, and therefore a “true” decision on the merits was never reached.
In support, Appellants submit a new affidavit by Boyd providing hearsay allegations
regarding statements juror Pickard allegedly made during deliberations and other
evidence of alleged anti-Native American bias.
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As we have explained, this contention is without merit because the prior
decision was affirmed on appeal and cannot be collaterally attacked in what is
effectively a § 2255 motion raising the same issues. Beyond that, Peña-Rodriguez’s
narrow exception to the no-impeachment rule simply does not apply. Verna Boyd
was not a juror. She has no first-hand knowledge of what was said during
deliberations, so Appellants have no “compelling evidence that another juror made
clear and explicit statements indicating” that racial animus motivated her vote to
convict. The Supreme Court in Peña-Rodriguez gave no hint it intended to allow
open-ended discovery of juror deliberations based on the averrals of third parties who
may have strong motives to undermine a jury’s verdict, but have no first hand
knowledge of what jurors may actually have relied on in reaching that verdict. Such
a ruling would be directly contrary to Federal Rule of Evidence 606(b).5
Boyd testified in support of her allegations immediately after the trial, and the
district court found her less credible than juror Pickard. Appellants do not get a
second bite at this apple twenty-five years later. “In § 2255(h), Congress permitted
a second collateral attack when a prisoner offers new, exculpatory evidence. It did
not authorize successive motions based on new evidence of a procedural
constitutional violation at trial, such as infringement of the right to an impartial jury.”
Hale v. Fox, 829 F.3d 1162, 1174-75 (10th Cir. 2016), cert. denied, 137 S. Ct. 641
(2017).
We affirm the district court’s decision to dismiss the Rule 60(b)(6) motions
because they were second or successive claims for § 2255 relief that had not been
authorized by the court of appeals under § 2244(b)(3).
5We further agree with the district court that Peña-Rodriguez does not apply
to Appellants because it has not been “made retroactive to cases on collateral review
by the Supreme Court.” § 2244(b)(2)(A).
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II. Actual Innocence Issues
After ruling that Appellants’ actual innocence claims were unauthorized
successive § 2255 motions, the district court addressed the merits of those claims.
This is prudent when dealing with complex issues regarding the scope of post-
conviction relief because actual innocence is often an exception to rules promoting
finality. For example, in considering the scope of § 2255, “an error of law does not
provide a basis for collateral attack unless the claimed error constituted a fundamental
defect which inherently results in a complete miscarriage of justice.” Sun Bear v.
United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (cleaned up). Also, one
test for court of appeals certification of a second or successive motion is whether
newly discovered evidence “would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty of the
offense.” § 2255(h)(1). And the test for granting a new trial based on newly
discovered evidence includes whether “it is probable that the new evidence would
produce an acquittal at the new trial.” Bell, 761 F.3d at 911 (quotation omitted).
One apparent exception to the notion that actual innocence is always relevant
to issues of post-conviction remedies, noted by the Supreme Court in Gonzalez, is the
provision in § 2241(b)(1) that a claim presented in a second or successive habeas
corpus application “that was presented in a prior application shall be dismissed.” As
we held in Thompson v. Nixon, Ҥ 2244(b)(1) is worded in an uncompromising
fashion. . . . Does the handing down of [a subsequent decision such as McQuiggen
or Peña-Rodriguez], and [Appellants’] present reliance on it, make [their] claim a new
one, as opposed to one presented in a previous petition? We think not. [It] simply
provides a new argument (the merits of which we need not explore) in support of the
same due-process claim that has been presented twice before.” 272 F.3d 1098, 1101
(8th Cir. 2001) cert. denied, 535 U.S. 1075 (2002); accord In re Hill, 715 F.3d 284,
293-95 (11th Cir. 2013); see Winarske v. United States, 913 F.3d 765, 768-69 (8th
Cir.) (citing cases), cert. denied, 140 S. Ct. 211 (2019). Here, all of Appellants’
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claims -- false forensic evidence at trial, victim recantation, and juror bias -- have
been litigated and relitigated at trial, in multiple new trial motions, and, at least
implicitly, in initial § 2255 motions. We conclude they are barred by § 2244(b)(1).
Assuming arguendo that Appellants’ Rule 60(b)(6) motions were not second
or successive motions subject to § 2244(b), we agree with the district court the
“newly discovered” victim recantations, medical science evidence, and Verna Boyd’s
repackaging of her prior bias allegations against juror Pickard do not meet the
“extraordinarily high” burden of proving actual innocence, a complete miscarriage
of justice, or are evidence that would produce an acquittal at a new trial.
Victim recantations were the primary subject of evidentiary hearings held in
response to Appellants’ second motion for new trial in 1999. The district court found
the young victims’ recantations were likely the product of family pressures and failed
to explain away other witnesses’ trial testimony, including the victims’ own
contemporaneous statements made to a foster mother, investigators, and counselors.
Rouse, 329 F. Supp. 2d at 1087-92. Appellants support their current motions with
new affidavits from now-adult victims reaffirming their prior recantations. The
district court concluded that this evidence does not “pass through the Schlup actual
innocence gateway.” “After considering the evidence presented at trial, the evidence
presented during the 2001 evidentiary hearing, and the recent affidavits of the
recanting victims, the Court cannot conclude that no reasonable juror would vote to
convict.” We agree. The motions are nothing more than an improper attempt to re-
litigate prior district court proceedings. See Gonzalez, 545 U.S. at 532.
The same is true of Appellants’ argument that subsequent changes in the
analysis of forensic evidence establish that the physical examination evidence relied
on at trial was “inaccurate, misleading and potentially false.” Appellants had medical
experts at trial who critiqued the government’s forensic medical evidence. See Rouse
I, 111 F.3d at 565. The district court relied on the government’s forensic evidence
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in denying the motion for new trial based on victim recantations, see Rouse, 329 F.
Supp. 2d at 1090-91, and we described that “powerful medical evidence” at length
in affirming the decision, Rouse II, 410 F.3d at 1008. Appellants’ new experts opine
that advances in child sexual abuse investigations discredit the government experts’
sexual abuse evidence at trial. In denying Rule 60(b)(6) relief, the district court noted
that this opinion “is not evidence that exonerates [Appellants],” and concluded that
“[i]t cannot be said that [Appellants] newly proposed experts’ opinions would more
likely than not result in their acquittal if given a new trial.” Again, we agree.
Appellants had the opportunity to raise these claims at trial, in their direct appeals,
and in their first attempts at federal habeas relief. They may not raise them again in
these untimely Rule 60(b)(6) motions. See § 2244(b)(1); Davis, 855 F.3d at 835.
The Orders of the district court dated March 18, 2020, are affirmed.
STRAS, Circuit Judge, concurring in part.
I join all but Part II of the opinion.
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