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Thompson v. Foltz

United States District Court, E.D. Michigan, Southern Division

April 9, 2015

ROBERT G. THOMPSON, Petitioner,
v.
DALE FOLTZ, Respondent,

OPINION AND ORDER (1) DENYING IN PART THE RULE 60 (B) MOTION FOR RELIEF FROM JUDGMENT, (2) TRANSFERRING IN PART THE RULE 60(B) MOTION TO THE COURT OF APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) AND (3) GRANTING MOTION FOR LEAVE TO FILE REPLY TO ANSWER

VICTORIA A. ROBERTS, District Judge.

Robert G. Thompson, ("Petitioner"), confined at the Brooks Correctional Facility In Muskegon Heights, Michigan, filed a motion for relief from judgment under Fed.R.Civ.P. 60(b)(4). Petitioner claims that this Court's predecessor, Judge George La Plata, lacked subject matter jurisdiction to adjudicate his 1986 habeas petition, in which Petitioner challenged his 1981 state court conviction for first-degree felony murder and armed robbery, because his conviction was the result of a void state court judgment. Respondent filed an answer to the Rule 60(b) motion. Petitioner filed a motion for leave to file a reply to the answer and a reply to the answer. For the reasons stated below, the Court denies in part the 60(b) motion for relief from judgment. The Court also transfers the matter to the United States Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A) for authorization to file a second or successive habeas petition. The Court grants Petitioner's motion for leave to file reply to answer.

I. Background

Petitioner was convicted of first-degree felony murder and armed robbery in the Saginaw County Circuit Court in 1981. Petitioner filed a petition for writ of habeas corpus in 1986. On April 16, 1987, Judge George La Plata denied the petition for writ of habeas corpus. The Sixth Circuit affirmed in part Judge La Plata's ruling but remanded the case for an evidentiary hearing on Petitioner's claim about whether the prosecutor violated Petitioner's due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose to exculpatory evidence. Judge La Plata conducted an evidentiary hearing on August 14, 1989, after which he again denied Petitioner relief. The Sixth Circuit affirmed the decision. Thompson v. Foltz, 1990 WL 93389; 907 F.2d 151 (6th Cir. July 6, 1990)(Table); cert. den. 498 U.S. 971 (1990).[1]

Petitioner filed a second habeas petition, which was denied. Thompson v. Johnson, No. 1:96-CV-00003 (W.D. Mich. Jan. 9, 1997); appeal dism. 97-1132 (6th Cir. June 16, 1997); cert. den. 522 U.S. 1018 (1997).

On July 31, 2008, Petitioner was denied permission to file a successive habeas petition. In Re Thompson, No. 08-1225 (6th Cir. July 31, 2008).

In 2013, Petitioner again filed a motion for permission to file a successive habeas petition, claiming that the state judges who signed his arrest warrant and conducted his trial lacked the jurisdiction to do so because they had not taken their oath of office. The Sixth Circuit denied Petitioner permission to file a succcessive habeas petition. In Re Thompson, No. 13-1400 (6th Cir. August 26, 2013).

Petitioner filed a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(4), both pro se and through counsel. Petitioner claims that Judge La Plata lacked subject matter over his 1986 habeas petition; Petitioner argues his state court conviction was and is void because the Saginaw County Circuit Court judge who presided over Petitioner's trial failed to comply with Michigan law by registering his oath of office with the Michigan Secretary of State. Petitioner seeks to have Judge La Plata's decisions to deny him habeas relief set aside. Petitioner also seeks to have his state court conviction vacated and requests to be released from incarceration.

II. Discussion

A Rule 60(b) motion for relief from judgment which seeks to advance one or more substantive claims following the denial of a habeas petition, such as a motion seeking leave to present a claim that was omitted from the habeas petition due to mistake or excusable neglect, or seeking to present newly discovered evidence not presented in the petition, or seeking relief from judgment due to an alleged change in the substantive law since the prior habeas petition was denied, should be classified as a "second or successive habeas petition, " which requires authorization from the Court of Appeals before filing, pursuant to the provisions of 28 U.S.C. § 2244(b). See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). On the other hand, when a habeas petitioner's Rule 60(b) motion alleges a "defect in the integrity of the federal habeas proceedings, " the motion should not be transferred to the circuit court for consideration as a second or successive habeas petition. Id., at 532.

Petitioner contends that the federal district court lacked jurisdiction over his habeas petition because his underlying state court judgment was void. Petitioner claims that the judge who presided over his trial never registered his oath of office with the Michigan Secretary of State's Office, as required by Mich. Const. 1963, Art. XI, Section 1 and Mich. Comp. Laws § 168.426n. Petitioner claims that pursuant to federal and state law, the trial judge, and thus the State of Michigan, lacked jurisdiction to impose his conviction and sentence.

Fed. R. Civ. P. 60(b)(4) indicates that a court may relieve a party from a final judgment, order, or proceeding because the judgment is void. A judgment is considered void, for purposes of 60(b)(4), if the court that rendered the judgment lacked jurisdiction over the subject matter or over the parties, or if the court acted in a manner that was inconsistent with due process of law. Antoine v. Atlas Turner, Inc., 66 F.3d 105, 108 (6th Cir. 1995)(quoting In Re Edwards, 962 F.2d 641, 644 (7th Cir. 1992)).

Petitioner is not entitled to relief from judgment for several reasons.

First, although there is no published case law on the subject, two unpublished decisions by the Michigan Court of Appeals held that a trial judge's failure to register his oath of office with the Michigan Secretary of State's Office does not void a judge's authority to serve in his official capacity, provided that the judge took the oath of office. See American Axle & Mfg., Inc. v. Murdock, No. 262786 and 265111, 2006 WL 3733887, * 6 (Mich.Ct. App. December 19, 2006); Donkers v. Livonia Police Dept., No. 262348, 2005 WL 3239468, * 7-9 (Mich.Ct. App. December 1, 2005). The Sixth Circuit rejected a similar jurisdictional challenge made by a federal prisoner. See U.S. v. Conces, 507 F.3d 1028, 1041 (6th Cir. 2007)(rejecting as frivolous the defendant's claim that the federal district court judge's failure to keep his "oaths of office" on file and to produce them upon the request of the defendant deprived the court of subject matter jurisdiction over the defendant's criminal case). This Court rejected a similar argument in a § 1983 civil rights complaint. See Jurich v. Campbell, No. 2:13-12544, 2014 WL 109489, *2 (E.D. Mich. Jan. 13, 2014)("the failure of a judge to demonstrate that he or she has taken an oath of office does not divest a court of subject-matter jurisdiction"). ...


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