United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE RULE 60(B) MOTION FOR
RELIEF FROM JUDGMENT [#21] AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA
Gershwin A. Drain, United States District Court Judge
before the Court is Petitioner Gerord Robinson's Motion
for Relief from Judgment. Dkt. No. 21. Petitioner is
incarcerated at the Macomb Correctional Facility in New
Haven, Michigan. On February 10, 2014, Petitioner filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Dkt. No. 1. Petitioner's petition challenged
his conviction for first-degree murder, assault with intent
to commit murder, felon in possession of a firearm, and three
counts of felony-firearm. R. Id. On October 29,
2014, this Court summarily dismissed the petition on the
ground that it had been filed outside of the one-year statute
of limitations contained in 28 U.S.C. § 2244(d)(1) for
filing habeas petitions. Dkt. No. 11. On December 18, 2015,
the Sixth Circuit denied Petitioner permission to file a
successive habeas petition. R. Dkt. No. 19. On August 23,
2017, Petitioner filed the present Motion pursuant to Rule
60(b) for relief from judgment. For the reasons that follow,
the Motion is DENIED.
60(b) motion for relief from judgment may be used to advance
one or more substantive claims following the denial of a
habeas petition. Such motions may seek leave to present a
claim that was omitted from the habeas petition, or present
newly discovered evidence not presented in the petition, or
seek relief from judgment due to an alleged change in the
substantive law. Gonzalez v. Crosby, 545 U.S. 524,
531 (2005). These motions 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 id.
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 is not considered to be
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.
claims that this Court erred in failing to apply the prison
mailbox rule to the date that he signed his state
post-conviction motion for relief from judgment and delivered
it to prison officials for mailing on October 18, 2011. The
trial court received Petitioner's post-conviction motion
for relief from judgment on November 1, 2011. Therefore, this
Court deemed Petitioner's motion filed, for purposes of
the statute of limitations, on November 1, 2011. This Court
declined to apply the prison mailbox rule to Petitioner's
post-conviction motion for relief from judgment. This Court
found that Michigan's prison mailbox rule does not apply
to motions for relief from judgment that are filed with the
state trial court pursuant to M.C.R. 6.500. Robinson v.
Romanowski, No. 2:14-cv-10617, 2014 WL 5480808, at *2,
n.2. The Sixth Circuit likewise rejected Petitioner's
argument on appeal. Dkt. No. 17, pg. 3 (Pg. ID 1804).
Petitioner claims that several judges in this district have
concluded that the prison mailbox rule should be applied to
6.500 motions for relief from judgment. Therefore, this Court
should deem them filed when the prisoner signs the motion and
delivers it to prison officials for mailing.
Motion, which argues that this Court misapplied the federal
statute of limitations set out in § 2244(d), 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. However, courts should still deny motions for relief
from judgment that attack the integrity of a previous habeas
proceeding, but are still without merit. Harris v.
U.S., 367 F.3d 74, 82 (2d Cir. 2004). “A Rule
60(b) motion is properly denied where the movant attempts to
use such a motion to relitigate the merits of a claim and the
allegations are unsubstantiated.” Miles v.
Straub, 90 Fed.App'x 456, 458 (6th Cir. 2004). A
movant under Rule 60(b) likewise fails to demonstrate
entitlement to relief when he simply rephrases the
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] first federal habeas proceeding, lose
those arguments, then raise the same arguments based on the
same evidence in a Rule 60(b) motion.” Brooks v.
Bobby, 660 F.3d 959, 962 (6th Cir. 2011).
motion for relief from judgment can be granted for the
(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, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
(6) any other reason that justifies ...