United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING PETITIONER'S RULE
60(B) MOTION FOR RELIEF FROM JUDGMENT (Dkt. 13), DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION
FOR LEAVE TO APPEAL IN FORMA PAUPERIS
A. GOLDSMITH United States District Judge
24, 2016, the Court summarily denied Petitioner Christopher
Cobb's application for a writ of habeas corpus on the
ground that it was time-barred by the statute of limitations
contained in 28 U.S.C. § 2244(d). The Court also
declined to issue a certificate of appealability or to grant
leave to appeal in forma pauperis. See Cobb v.
Klee, No. 15-cv-13682, 2016 WL 3457944 (E.D. Mich. June
has now filed a motion for relief from judgment pursuant to
Federal Rule of Civil Procedure 60(b) (Dkt. 13). For the
reasons that follow, the motion will be denied.
60(b) motion for relief from judgment that 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). A Rule 60(b) motion can be considered
as raising “a ‘claim' if it attacks the
federal court's previous resolution of a claim on the
merits, since alleging that the court erred in denying habeas
relief on the merits is effectively indistinguishable from
alleging that the movant is, under the substantive provisions
of the statutes, entitled to habeas relief.”
Id. at 532. A habeas court's determination on
the merits refers “to a determination that there exist
or do not exist grounds entitling a petitioner to habeas
corpus relief under 28 U.S.C. §§ 2254(a) and
(d).” Id. at 532 n.4.
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. A
Rule 60(b) motion is not considered as raising a claim on the
merits when the motion “merely asserts that a previous
ruling which precluded a merits determination was in
error-for example, a denial for such reasons as failure to
exhaust, procedural default, or statute-of-limitations
bar.” Id. at 532 n.4.
motion, which argues that the one-year statute of limitations
should be equitably tolled based on a retroactive change in
the law, constitutes a “true” 60(b) claim that
attacks the integrity of the habeas proceedings and would not
be considered a successive habeas petition. See
Gonzalez, 545 U.S. at 533.
a motion for relief from judgment that attacks the integrity
of a previous habeas proceeding, but is nevertheless without
merit, should simply be denied, as would any other motion for
relief from judgment that lacks merit. See Harris v.
United States, 367 F.3d 74, 82 (2d Cir. 2004). A Rule
60(b) motion is properly denied where the movant attempts to
use the motion to relitigate the merits of a claim and the
allegations are unsubstantiated. See Miles v.
Straub, 90 F. App'x 456, 458 (6th Cir. 2004). A
movant under Rule 60(b) likewise fails to demonstrate
entitlement to relief when he or she simply rephrases the
prior allegations that were contained in the original
complaint. See Johnson v. Unknown Dellatifa, 357
F.3d 539, 543 (6th Cir. 2004). A habeas petitioner may not
raise arguments during his initial federal habeas proceeding,
lose those arguments, then raise the same arguments based on
the same evidence in a Rule 60(b) motion for relief from
judgment. See Brooks v. Bobby, 660 F.3d 959, 962
(6th Cir. 2011).
Rule 60(b) motion, Petitioner argues that the commencement of
the one-year limitations period should be postponed because
of the Michigan Supreme Court case of People v.
Lockridge, 498 Mich. 358; 870 N.W.2d 502 (Mich. 2015),
where the Michigan Supreme Court held that Michigan's
Sentencing Guidelines scheme violates the Sixth Amendment
right to a jury trial. The Lockridge decision was
based on the 2013 case of Alleyne v. United States,
133 S.Ct. 2151, 2155 (2013), in which the U.S. Supreme Court
held that any fact that increases the mandatory minimum
sentence for a crime is an element of the criminal offense,
which must be proven beyond a reasonable doubt.
raised this same argument in his motion for equitable
tolling. This Court rejected that argument in its opinion and
The United States Supreme Court's decision in
Alleyne would not delay the commencement of the
limitations period, because Alleyne has not been
made retroactive to cases on collateral review. See In re
Mazzio, 756 F.3d 487, 489-490 (6th Cir. 2014).
Additionally, Petitioner cannot use the Michigan Supreme
Court's decision in Lockridge to invoke §
2244(d)(1)(C) to delay the commencement of the limitations
period. A state court's ruling does not constitute a new
constitutional rule of law that would delay the start of the
limitations period under § 2244(d)(1)(C), because the
“AEDPA's plain text requires a constitutional right
‘newly recognized by the [United States] Supreme
Court.'” Broom v. Strickland, 579 F.3d
553, 557 (6th Cir. 2009). Therefore, the Court finds that the
instant petition is untimely.
Cobb, 2016 WL 3457944, at *3.
Court denies Petitioner's Rule 60(b) motion for relief
from judgment, because Petitioner is simply using the motion
to relitigate the merits of his retroactivity argument, which
this Court previously rejected. See Miles, 90 F.
App'x at 458. Accordingly, Petitioner is not entitled to
relief from judgment in this case.
Court also denies Petitioner a certificate of appealability.
Title 28 U.S.C. § 2253(c)(1)(A) and Federal Rule of
Appellate Procedure 22(b) provide that an appeal from the
district court's denial of a writ of habeas corpus may
not be taken unless a certificate of appealability is issued
either by a circuit court or district court judge. If an
appeal is taken by an applicant for a writ of habeas corpus,
the district court judge shall either issue a certificate of
appealability or state the reasons why a certificate of
appealability shall not issue. Fed. R. App. P. 22(b). To
obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2).
district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional
claims, a certificate of appealability should issue, and an
appeal of the district court's order may be taken, if the
petitioner shows 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 district court was
correct in its procedural ruling. Slack v. McDaniel,
529 U.S. 473, 484 (2000). When a plain procedural bar is
present, and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not ...