Rule 60(b) Motion Based on Failures of Earlier Counsel Is Second 2254 Motion

Bixby v. Sitrling: Bixby was convicted of two counts of murder and sentenced to death following an incident where he shot two police officers during a property dispute. After exhausting his state appellate and post-conviction remedies, he filed a 2254 motion in federal court. Although represented by counsel. Bixby’s motion was largely lifted from prior state pleadings. Both the magistrate, in recommending denial, and the district court, in adopting that recommendation, commented on the unimpressive nature of the motion.

Newly appointed counsel for Bixby’s appeal to the Fourth Circuit was also appointed for further proceedings in the district court and filed a motion under Rule 60(b) of the Rules of Civil Procedure to seek relief from the district court’s judgment because Bixby “did not receive meaningful, ethical representation.” The district court denied the motion, concluding that the Rule 60(b) motion was really an attempt at an unauthorized second or successive 2254 motion.