United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION FOR
PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE
Darrell Wilson, a Michigan state prisoner, filed a pro
se petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, challenging his convictions for first-degree
felony murder, Mich. Comp. Laws § 750.316, armed
robbery, Mich. Comp. Laws § 750.529; and false report of
a felony, Mich. Comp. Laws § 750.411a(1). Respondent
filed a motion for summary judgment, arguing that the
petition should be denied because it was not timely filed.
Petitioner did not file a response to the motion. On February
29, 2016, the Court granted Respondent's motion and
dismissed the petition. (ECF No. 10). Now before the Court is
Petitioner's Motion for Equitable Tolling.
Court concludes that it may not construe Petitioner's
motion as a motion for reconsideration of the Court's
February 29, 2016 order because a motion for reconsideration
must be filed within fourteen days after the entry of the
judgment or order challenged. E.D. Mich. L.R. 7.1(h)(1).
Petitioner's motion was filed 60 days after the entry of
judgment in this case. The motion is also untimely under
Federal Rule of Civil Procedure 59(e), because a motion to
alter or amend judgment under Rule 59(e) must be filed no
later than 28 days after entry of judgment. Fed.R.Civ.P. 59
Court construes the motion as a motion for relief from
judgment under Federal Rule of Civil Procedure 60(b). Rule 60
(b) allows a court to relieve a party from a final judgment
for 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 misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, release, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is not longer
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Court finds that none of the factors cited in 60(b)(1)-(5) is
applicable. Petitioner makes no showing of mistake,
inadvertence, surprise or excusable neglect. Rule 60(b)(1).
Nor does he rely upon newly discovered evidence or evidence
of fraud, misrepresentation or misconduct of an opposing
party. Rule 60(b)(2)-(3). Relief is allowed under Rule
60(b)(4) only in the instance of a “jurisdictional
error” or “a violation of due process, ”
neither of which is alleged here. Northeast Coalition for
Homeless v. Husted, 696 F.3d 580, 601 (6th Cir. 2012),
citing United Student Aid Funds, Inc. v. Espinosa,
559 U.S. 260 (2010). Rule 60 (b)(5) is also inapplicable
because the judgment has not been vacated or discharged. Rule
60(b)(6) remains the only possible avenue for relief for
under Rule 60(b)(6) ... requires a showing of
‘extraordinary circumstances.'” Gonzales
v. Crosby, 545 U.S. 524, 546 (2005). The Court granted
Respondent's motion and dismissed the petition because it
was filed almost one year after the limitations period
expired. In his motion, Petitioner argues that he is entitled
to equitable tolling of the limitations period because his
appellate attorney did not timely inform him when the
Michigan Supreme Court denied his application for leave to
appeal, causing the late filing of his habeas corpus
petition. He states that he learned the application had been
denied two years after the Supreme Court's decision when
he and his family members inquired about the status of his
appeal. Petitioner's circumstances are not extraordinary.
Petitioner's argument in support of equitable tolling
could have been raised in his petition, in his 796-page
pleading in support of the petition, or in a reply to
Respondent's motion for summary judgment. Instead, he
raises the argument for the first time in the pending motion.
The Court is not persuaded by Petitioner's claim that he
failed to realize the significance of this argument until
after the Court dismissed his petition. The significance of
this argument would have been apparent to even a layperson
upon the filing of Respondent's motion. The Court finds
no extraordinary circumstances warranting relief under Rule
Court also denies Petitioner a certificate of appealability.
A habeas petitioner is required to obtain a certificate of
appealability before he can appeal the denial of a 60(b)
motion for relief from judgment that seeks to challenge the
judgment in a habeas case. See United States v.
Hardin, 481 F.3d 924, 926 (6th Cir. 2007).
“[J]urists of reason” would not find it debatable
whether this Court is correct in its ...