United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTION FOR RELIEF FROM
G. EDMUNDS UNITED STATES DISTRICT JUDGE
February 2, 2010, petitioner Niko Shonta Simmons commenced
this action by filing a pro se habeas corpus
petition. The Court dismissed the petition because Petitioner
previously filed a habeas corpus petition challenging the
same convictions and raising the same issues and because the
judge assigned to the prior case had already determined that
Petitioner failed to exhaust state remedies for his claims.
Currently pending before the Court is Petitioner's motion
for relief from judgment under Federal Rule of Civil
Procedure 60(b)(4). Petitioner contends that the Court's
judgment in this case is void. For the reasons that follow,
the motion is denied.
2007, Petitioner pleaded guilty to armed robbery, Mich. Comp.
Laws § 750.529, and possession of a firearm during the
commission of a felony, second offense, Mich. Comp. Laws
§ 750.227b. The trial court sentenced Petitioner to five
years in prison for the felony-firearm conviction and to a
consecutive term of seven to twenty years in prison for the
robbery conviction. Petitioner appealed his convictions, but
the Michigan Court of Appeals denied leave to appeal for lack
of merit in the grounds presented. See People v.
Simmons, No. 285409 (Mich. Ct. App. June 6, 2008). On
October 27, 2008, the Michigan Supreme Court denied leave to
appeal because it was not persuaded to review the issues.
See People v. Simmons, 757 N.W.2d 85 (Mich. 2008)
January 26, 2010, Petitioner filed his first petition for the
writ of habeas corpus, challenging his armed robbery and
felony-firearm convictions on fourteen grounds. The case was
assigned to former United States District Judge Lawrence P.
Zatkoff. See Simmons v. Lafler, No. 10-10353 (E.D.
Mich. Jan. 26, 2010).
February 2, 2010, Petitioner commenced this action by filing
another habeas corpus petition, challenging the same
convictions for armed robbery and felony firearm and
asserting the same fourteen grounds for relief. The Court
ordered the State to file a responsive pleading because the
Court was unaware at the time that Petitioner had challenged
the same convictions in a prior petition.
February 24, 2010, Judge Zatkoff dismissed Petitioner's
first petition without prejudice for failure to exhaust state
remedies. The State subsequently moved to dismiss this case
on the basis that Petitioner had not exhausted state remedies
for all his claims. On January 20, 2011, this Court granted
the State's motion because Judge Zatkoff had already
determined that Petitioner did not exhaust state remedies for
all his claims and because it appeared that Petitioner did
not pursue any state remedies for his unexhausted claims
after Judge Zatkoff dismissed Petitioner's first
April 28, 2011, Petitioner filed a third habeas corpus
petition, which United States District Judge Sean F. Cox
dismissed as untimely. See Simmons v. Woods, No.
11-11869 (E.D. Mich. Feb. 27, 2014). Petitioner appealed
Judge Cox's decision, but the United States Court of
Appeals for the Sixth Circuit declined to grant a certificate
of appealability. See Simmons v. MacLaren, No.
14-1568 (6th Cir. Sept. 30, 2014).
pending before this Court is Petitioner's motion for
relief from judgment. Petitioner argues that he was denied
his right to counsel at his arraignment in state district
court, that his trial attorney failed to subject his case to
meaningful adversarial testing, that he was improperly
convicted of felony firearm, second offense, and that the
prosecutor reneged on the signed plea agreement. Petitioner
also challenges the Court's conclusion that he did not
exhaust state remedies for all his claims.
brings his motion under Federal Rule of Civil Procedure
60(b)(4), which authorizes courts to grant relief from a
final judgment that is void. Motions “under Rule 60(b)
must be made within a reasonable time.” Fed.R.Civ.P.
60(c)(1). Petitioner filed his Rule 60(b) motion more than
five years after this Court dismissed his habeas petition. He
could have raised his arguments sooner, as none of his claims
are based on new evidence. He also has not provided the Court
with an explanation for the late filing. Thus, his motion is
also has not persuaded the Court that its order of dismissal
is void. “A judgment is void under 60(b)(4) ‘if
the court that rendered it lacked jurisdiction of the subject
matter, or of the parties, or if it acted in a manner
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
Court had subject matter jurisdiction of Petitioner's
habeas petition because Petitioner filed his petition under
28 U.S.C. § 2254, which authorizes federal district
courts to entertain applications for the writ of habeas
corpus in behalf of persons in custody pursuant to a state
court's judgment. Furthermore, the Court did not deprive
Petitioner of due process when it dismissed his petition.
Petitioner was put on notice as early as February 24, 2010,
when Judge Zatkoff dismissed his first habeas petition, that
he had not exhausted state remedies for some of his claims.
He could have moved for a stay of this case then and pointed
out that he wanted to pursue state remedies for his
unexhausted claims without the risk of having his habeas
petition barred by the statute of limitations.
contends that Judge Zatkoff and this Court erroneously
concluded that he did not exhaust state remedies for all his
claims. Petitioner alleges that he raised his claims in a
pro se supplemental brief, which he mailed to the
Michigan Court of Appeals on June 13, 2008. (Mot. at 21, ECF
No. 12, Pg ID 445.) The Michigan Court of Appeals, however,
rejected the brief because the court had denied leave to
appeal before it received Petitioner's supplemental
brief. Consequently, any claims that Petitioner raised in his
pro se supplemental brief in the Michigan Court of
Appeals were not exhausted when they were raised here.
See Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir.
2009) (explaining that the exhaustion requirement is
satisfied if the prisoner fairly presents the factual and
legal basis for each of his claims to the state court of
appeals and to the state supreme court before raising the
claims in a habeas corpus petition). Even if the Court ...