The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
[Re: Motion at Docket No. 63]
This Court entered judgment denying James Gilkeson's Petition for a Writ of Habeas Corpus on April 21, 2010.*fn1 At Docket No. 63, Gilkeson, a state prisoner appearing pro se, filed a Motion for Relief From Judgment.*fn2 In his motion, Gilkeson requests this Court: (1) reopen this case and grant a mandatory evidentiary hearing; and (2) grant de novo review for the first, fourth, and fifth grounds raised in his Petition.
In addition to unsuccessfully appealing from the judgment,*fn3
this is Gilkeson's second motion for post-conviction relief.
On May 3, 2011, Gilkeson filed a Motion for Reconsideration under
Federal Rule of Civil Procedure 60,*fn4 which this
Court, treating it as a timely motion to
alter or amend the judgment under Federal Rule of Civil Procedure 59,
denied on June 7, 2011.*fn5
Gilkeson did not appeal from that Order.
In his current motion Gilkeson seeks relief under Rule 60(b)(6), which authorizes this Court to relieve him from a judgment for "any other reason that justifies relief."*fn6 In his motion, Gilkeson challenges the "integrity of the first habeas corpus proceeding" and requests this Court reopen this case. Gilkeson points to three errors that he alleges undermined the integrity of the proceedings: (1) refusal to reach the merits of his first ground for relief (sufficiency of the evidence) by falsely claiming that the state appellate court decision rests on state law alone; (2) refusal of this Court to consider Gilkeson's affidavit filed in the state-appellate court as being of equal weight to the victim's testimony; and (3) failure to grant Gilkeson a mandatory evidentiary hearing to resolve the factual dispute between the victim's testimony at trial and Gilkeson's post-trial affidavit, which Gilkeson contends would establish his actual innocence.
First, Rule 60(b)(6) may not be used as a substitute for appeal.*fn7 Each of the issues Gilkeson attempts to raise in his current motion are clearly of record and could have been raised on appeal. In his Notice of Appeal Gilkeson appealed from every portion of this Court's decision.*fn8
Second, Gilkeson is not entitled to an evidentiary hearing. The Supreme Court made clear in Pinholster that "review under [28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."*fn9 "Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings."*fn10 "If the state-court decision 'identifies the correct governing legal principle' in effect at the time, a federal court must assess whether the decision 'unreasonably applies that principle to the facts of the prisoner's case.'"*fn11 As the Supreme Court noted, "[i]t would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court."*fn12
Although under Pinholster an evidentiary hearing in a federal habeas proceeding is not absolutely precluded, Pinholster also made clear that the discretion to grant a request for an evidentiary hearing is cabined by § 2254(e)(2),*fn13 which provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found ...