United States District Court, D. North Dakota, Southwestern Division
LeRoy K. Wheeler, Petitioner,
Colby Braun, Respondent.
REPORT AND RECOMMENDATION
CHARLES S. MILLER, Jr., Magistrate Judge.
Before the court is a "Motion to Correct the Record" filed by the petitioner, LeRoy K. Wheeler ("Wheeler"), on October 8, 2015. For the reasons set forth below, the undersigned recommends that the motion be dismissed.
In order to provide some context to the instant motion, the undersigned shall briefly summarize the procedural history of this action.
Wheeler initiated this action in September 2008 with the submission of a habeas petition pursuant to 28 U.S.C. § 2254. He asserted, amongst other things, that he had been denied his right to a meaningful appeal of his underlying conviction in State district court due to alleged alterations to the transcripts of his State court proceedings.
Respondent moved to dismiss Wheeler's petition. On June 8, 2010, after reviewing the parties' respective briefs in support of and opposition to respondent's motion, the undersigned issued a report recommending that the court grant respondent's motion and dismiss Wheeler's petition. Specifically, in regards to alleged alterations to the State court record, the undersigned opined:
Wheeler has failed to present any evidence to substantiate his assertions that the transcript was rife with omissions or material inaccuracies and therefore unreliable. Wheeler's assertions regarding transcript alterations are based solely upon his recollection of the proceedings. He has not presented any evidence of the alleged transcript alterations sufficient to refute the presumption of correctness afforded by State law to a certified transcript. FN 9 "In the absence of obvious omissions or glaring inconsistencies in the trial transcript, it is more probable that the court reporter accurately reported the testimony given at the trial than that the court reporter made omissions or errors in the transcription of the testimony." Schell v. Schumacher 298 N.W.2d 474, 476 (N.D. 1980). Moreover, even if the court accepted the premise that there were problems with the transcripts, it is incumbent upon Wheeler to demonstrate that he was actually prejudiced by the alleged omissions and alterations of which he complains. Rust v. Zent, 17 F.3d 155, 161-162 (6th Cir.1994); see also United States v. Frady, 456 U.S. 152, 170 (1982) (opining that petitioner shoulders "the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions"). Where there is "strong evidence of a petitioner's guilt and a lack of evidence to support his claim, " prejudice is not established. Rust v. Zent, 17 F.3d at162. A petitioner must show "a reasonable probability that the outcome of the trial would have been different." Mason v. Mitchell, 320 F.3d 604, 629 (6th Cir. 2003) (internal quotations omitted) (citing Strickler v. Greene, 527 U.S. 263 (1999)). Wheeler has made no such showing here.
(Doc. No. 40).
On June 29, 2010, the court adopted the undersigned's report and recommendation in its entirety over Wheeler's objection, granted respondent's motion, and dismissed Wheeler's petition. (Doc. No. 43). In so doing, it refused to issue Wheeler a certificate of appealability on the grounds that an appeal from the dismissal of his petition would be frivolous and could not be taken in good faith (Id.) The Eighth Circuit subsequently denied Wheeler's request for a certificate of appealability. (Doc. Nos. 47-48).
On October 8, 2015, almost five years after the court had dismissed his habeas petition, Wheeler filed the current motion pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure.
He asserts in relevant part the following:
Wheeler hereby shows that these transcripts have been deliberately altered, depriving Wheeler of a verbatim record of the state court proceedings and the due process of law, and the equal protection of the laws guaranteed by the U.S. Constitution in the 14th Amendment, of an adequate and effective appeal of the trial court errors in state court. This is also a fraud on this court by the presentation of these altered transcripts by the State of North Dakota justifying relief to Wheeler under F.R. Civ. P. 60(b)6) & (d)(3)....
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Wheeler is refiling for habeas corpus relief, however, there is a serious injustice being done to Wheeler if he cannot, prior to his filing, obtain corrected transcripts. Wheeler cannot effectively present his claims for relief in this Court with the intentionally altered transcripts that were presented to him ...