United States District Court, E.D. Michigan, Southern Division
CHANCHEZ D. STEWART, Petitioner,
DUNCAN MACLAREN, Respondent.
OPINION AND ORDER DENYING THE RULE 60(B) MOTION FOR
RELIEF FROM JUDGMENT, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
Court dismissed petitioner's application for a writ of
habeas corpus on the ground that the petition was filed
outside of the one year statute of limitations for habeas
petitions contained in 28 U.S.C. § 2244(d)(1). The Court
denied petitioner a certificate of appealability and leave to
appeal in forma pauperis. Stewart v.
MacLaren, No. 15-CV-11919, 2016 WL 6995732 (E.D. Mich.
Nov. 30, 2016).
has filed a Rule 60(b) motion for relief from judgment. For
the reasons that follow, the motion is DENIED.
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, ” requiring authorization from the Court of
Appeals before filing, pursuant to 28 U.S.C. § 2244(b).
See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005).
However, 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. Gonzalez, 545
U.S. at 532. A Rule 60(b) motion does not raise 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.
claims in his motion for relief from judgment that this Court
misapplied the statute of limitations. Petitioner's
motion, which argues that this Court misapplied the federal
statute of limitations set out in 28 U.S.C. § 2244(d),
constitutes a “true” 60(b) claim which challenges
the integrity of the habeas proceedings and would not be
considered a successive habeas petition. See
Gonzalez, 545 U.S. at 533. However, a motion for relief
from judgment which attacks the integrity of a previous
habeas proceeding, but is meritless, should simply be denied,
as would any other motion for relief from judgment that lacks
merit. See Harris v. U.S., 367 F.3d 74, 82 (2nd Cir.
first argues that the statute of limitations period should
not have commenced to run until the 90 day time period for
him to seek certiorari with the United States Supreme Court
expired following the Michigan Supreme Court's rejection
of his untimely filed application for leave to appeal.
Court in its summary dismissal order noted that the one year
limitations period normally does not commence until the 90
day period for seeking certiorari with the United States
Supreme Court expires. However, when a habeas petitioner
appeals his or her conviction to the Michigan Court of
Appeals and does not properly or timely file an application
for leave to appeal to the Michigan Supreme Court, the
additional ninety days for filing an appeal to the United
States Supreme Court is not taken into account. Stewart
v. MacLaren, No. 2016 WL 6995732, at * 2 (citing
Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012)).
Petitioner did not file a timely application for leave to
appeal to the Michigan Supreme Court. His conviction
therefore became final, for purposes of § 2244(d)(1)(A),
on January 15, 2013, when the fifty six day time period for
seeking leave to appeal with the Michigan Supreme Court
expired. Id., at * 3. Petitioner had until January
15, 2014 to timely file his petition for writ of habeas
corpus unless the statute of limitations was somehow tolled.
Because petitioner did not file his state post-conviction
motion for relief from judgment until February18, 2014, which
was after the limitations period expired, the petition was
60(b) motion should be denied when the movant attempts to use
the motion to relitigate the merits of a claim. See Miles
v. Straub, 90 F. App'x. 456, 458 (6th Cir. 2004). A
movant under Rule 60(b) is also not entitled 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 or her
first federal habeas proceeding, lose those arguments, and
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).
Court will deny this portion of petitioner's Rule 60(b)
motion, because petitioner is merely using the motion to
relitigate the merits of an issue already decided adversely
against him. See Miles, 90 F. App'x. at 458.
also argues in his motion for relief from judgment that he is
entitled to equitable tolling because the attorney he hired
to represent him on his state post-conviction motion for
relief from judgment erroneously advised him that the federal
statute of limitations did not run until February 18, 2014.
did not argue in his original and amended habeas petitions
that his state post-conviction counsel gave him erroneous
advice about the expiration of the limitations period,
although he did claim that his appellate counsel on his
appeal of right allegedly misinformed him that he could
obtain an extension of time to file an application for leave
to appeal with the Michigan Supreme Court following the
affirmance of his conviction on his appeal of right by the
Michigan Court of Appeals.
60(b) motion for relief from judgment “does not provide
relief simply because litigants belatedly present new facts
or arguments after the district court has made its final
ruling.” Jinks v. AlliedSignal, Inc., 250 F.3d
381, 387 (6th Cir. 2001). Petitioner thus cannot raise this
equitable tolling argument for the first time in his Rule
event, the Court would reject this as a basis for equitable
tolling as it did in its original opinion and order to reject
the idea that appellate counsel's allegedly inaccurate
advice about petitioner's ability to seek an extension of
time to file an appeal with the Michigan Supreme Court would
justify equitable tolling. Attorney miscalculation does not
justify the equitable tolling of the AEDPA's statute of
limitations, particularly in contexts where prisoners do not
have the constitutional right to counsel. See Lawrence v.
Florida, 549 U.S. 327, 336-37 (2007)(citing Coleman
v. Thompson, 501 U.S. 722, 756-757 (1991)). Petitioner
is not entitled to relief from judgment.
Court denies petitioner a certificate of appealability. 28
U.S.C. § 2253(c)(1)(A) and F.R.A.P. 22(b) state that an
appeal from the district court's denial of a writ of
habeas corpus may not be taken unless a certificate of
appealability (COA) 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.
F.R.A.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). A habeas
petitioner is required to obtain a certificate of