United States District Court, E.D. Michigan, Southern Division
ORDER REOPENING THE CASE, DENYING THE MOTION
FOR RELIEF FROM JUDGMENT, DENYING A CERTIFICATE OF
APPEALABILITY, AND TRANSFERRING THE MOTION TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
D. BORMAN, UNITED STATES DISTRICT JUDGE
prisoner Demetrius Brasher (“Petitioner”) has
filed a motion for relief from judgment pursuant to Federal
Rule of Civil Procedure 60(b)(4) concerning the Court's
denial of his federal habeas petition on August 21, 1998.
Petitioner dated the instant motion on October 3, 2016. In
his motion, he seeks to void the Court's judgment
asserting that the Court acted improperly on habeas review by
enforcing an invalid state court judgment. He also challenges
the state court's jurisdiction and arraignment procedures
in his criminal case. The Court now REOPENS this case for the
limited purpose of resolving Petitioner's motion. See
Heximer v. Woods, No. 2:08-CV-14170, 2016 WL 183629, * 1
(E.D. Mich. Jan. 15, 2016) (reopening case for consideration
of Rule 60(b) motion).
Federal Rule of Civil Procedure 60(b), a federal district
court will grant relief from a final judgment or order only
upon a showing of one of the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence could not
have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged; it is based on an
earlier judgement that has been reversed or otherwise
vacated; or applying it prospectively is not longer
equitable; or (6) any other reason that justifies relief.
motion under Rule 60(b) must be made within a reasonable time
- and for reasons (1), (2), and (3) - no more than one year
after the entry of the judgment or order or the date of the
proceeding. Fed.R.Civ.P. 60(c)(1); Conner v. Attorney
General, 96 F. App'x 990, 992 (6th Cir. 2004). The
bounds of reasonable time “ordinarily depends on the
facts of the given case including the length and
circumstances of the delay, the prejudice to the opposing
party by reason of the delay, and the circumstances
compelling equitable relief.” Olle v. Henry &
Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990). A court
has broad discretion in deciding such matters, but that
discretion is circumscribed by public policy favoring
finality of judgments and termination of litigation.
Waifersong, Ltd. v. Classic Music Vending, 976 F.2d
290, 292 (6th Cir. 1992).
did not file his motion for relief from judgment within one
year or within a reasonable time given that the Court
dismissed his habeas petition in 1998 and he filed his
current motion in 2016. Petitioner fails to provide an
explanation for the more than 18-year delay in filing his
motion. He knew or could have known of his jurisdictional
argument at the time of his state criminal proceedings and/or
when he sought habeas review. The motion is untimely and must
even if the Court considers the merits of the motion under
Federal Rule of Civil Procedure 60(b)(4), Petitioner is not
entitled to relief from judgment. He fails to establish that
this Court's judgment is void. The Court had jurisdiction
over his habeas case, see 28 U.S.C. § 2254(a),
and did not err in dismissing his habeas petition on the
merits of the claims that he presented in his pleadings.
Accordingly, the Court DENIES Petitioner's motion.
certificate of appealability is necessary to appeal the
denial of a Rule 60(b) motion. See Johnson v. Bell,
605 F.3d 333, 336 (6th Cir. 2010) (citing United States
v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007)). A
certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
When a court denies relief on the merits, the substantial
showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court's assessment of
the claim debatable or wrong. Slack v. McDaniel, 529
U.S. 473, 484-85 (2000). When a court denies relief on
procedural grounds without addressing the merits, a
certificate of appealability should issue if it is shown that
jurists of reason would find it debatable whether the
petitioner states a valid claim of the denial of a
constitutional right, and that jurists of reason would find
it debatable whether the court was correct in its procedural
Slack v. McDaniel in mind, judges within this
district have adopted the following standard for determining
whether a certificate of appealability should issue in the
context of the denial of a Rule 60(b) motion:
A COA should issue only if the petitioner shows that (1)
jurists of reason would find it debatable whether the
district court abused its discretion in denying the Rule
60(b) motion, and (2) jurists of reason would find it
debatable whether the underlying habeas petition, in light of
the grounds alleged to support the 60(b) motion, states a
valid claim of the denial of a constitutional right.
Missouri v. Birkett, No. 2:08-CV-11660, 2012 WL
882727, *2-3 (E.D. Mich. March 15, 2012); Carr v.
Warren, 05-CV-73763, 2010 WL 2868421, *2 (E.D. Mich.
July 21, 2010) (both citing Kellogg v. Strack, 269
F.3d 100, 104 (2d Cir. 2001)). Petitioner is not entitled to
a certificate of appealability because he fails to
demonstrate that jurists of reason would find it debatable
that the Court abused its discretion in denying his motion.
Accordingly, the Court DENIES a certificate of appealability.
to the extent that Petitioner seeks to raise new claims for
relief, i.e., challenging the state court's
jurisdiction and arraignment proceedings, that were not
previously presented in federal court, his motion constitutes
a second or successive habeas petition which must be
transferred to the United States Court of Appeals for the
Sixth Circuit. See Gonzalez v. Crosby, 545 U.S. 524,
532 (2005); In re Nailor, 487 F.3d 1018, 1022-23
(6th Cir. 2007). Accordingly, the Court TRANSFERS the motion
to the Sixth Circuit.