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Cobas v. Burgess

United States District Court, E.D. Michigan, Southern Division

February 27, 2018

NELSON COBAS, Petitioner,
v.
MARY BURGESS, Respondent.

          OPINION AND ORDER DENYING PETITIONER'S MOTION TO SET ASIDE PREVIOUS JUDGMENT [58], DENYING PETITIONER'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS [59], AND DENYING PETITIONER'S MOTION FOR RELIEF FROM JUDGMENT [71]

          Denise Page Hood Chief Judge, United States District Court.

         This habeas corpus case under 28 U.S.C. § 2254 has come before the Court on petitioner Nelson Cobas' post-judgment motions (1) to set aside the Court's judgment in this case, (2) to proceed in forma pauperis, and (3) for relief from the Court's judgment. As explained more fully below, the dispositive motions are untimely and also meritless, and the motion to proceed in forma pauperis was unnecessary. The Court, therefore, will deny all three motions.

         I. BACKGROUND

         Petitioner was convicted of first-degree murder in 1991 and sentenced to life imprisonment. His direct appeal ended on September 13, 1995, when the Michigan Supreme Court denied leave to appeal. See People v. Cobas, 450 Mich. 862; 539 N.W.2d 375 (1995) (table). On April 10, 1997, Petitioner filed a motion nunc pro tunc for an evidentiary hearing in the state trial court. The trial court denied his motion, but Petitioner did not appeal the trial court's decision.

         On May 18, 1999, Petitioner filed a motion for relief from judgment. The state trial court denied the motion because it was a second or successive motion under Michigan Court Rule 6.502(G). On May 25, 2000, the Michigan Court of Appeals dismissed Petitioner's appeal from the trial court's order on the ground that the court lacked jurisdiction to hear an appeal from a second motion for relief from judgment. On August 3, 2000, the Michigan Supreme Court rejected Petitioner's application for leave to appeal as untimely.

         On October 3, 2000, Petitioner commenced this action. The Court dismissed his habeas petition with prejudice because it was barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2244(d). The United States Court of Appeals for the Sixth Circuit affirmed this Court's decision, see Cobas v. Burgett, 306 F.3d 441 (6th Cir. 2002), and on April 21, 2003, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. See Cobas v. Burgess, 538 U.S. 984 (2003).

         Petitioner filed a second petition for the writ of habeas corpus, which another judge in this district transferred to the Federal Court of Appeals for the Sixth Circuit as a second or successive habeas petition under 28 U.S.C. § 2244(b)(3)(A). See Cobas v. Howes, No. 2:06-cv-11560 (E.D. Mich. May 2, 2006). The Sixth Circuit Court of Appeals denied Petitioner's request for leave to file a second or successive habeas petition. See In re Nelson Cobas, No. 06-1646 (6th Cir. Oct. 24, 2006). Petitioner filed a third habeas corpus petition, which was also transferred to the Sixth Circuit as a second or successive petition. See Cobas v. Howes, No. 5:08-cv-10516 (E.D. Mich. Feb. 11, 2008). The Sixth Circuit denied leave to file a second or successive petition. In re Nelson Cobas, No. 08-1171 (6th Cir. Oct. 23, 2009).

         Petitioner has also filed a number of post-conviction applications and motions in this case. In 2008, he filed an application for habeas corpus relief, which the Court transferred to the Sixth Circuit Court of Appeals as a second or successive habeas petition. See Docket No. 41, filed Sept. 9, 2008. The Sixth Circuit denied Petitioner's subsequent motion for an order authorizing this Court to adjudicate his second or successive habeas petition. See In re Nelson Cobas, No. 08-2471 (6th Cir. Apr. 29, 2009).

         In 2013, Petitioner filed a motion to amend or correct the Court's opinion and order dismissing his habeas petition and a supplemental motion for reviewing procedural history. The Court denied both motions on December 30, 2013. See Docket No. 48.

         In 2014, Petitioner filed a motion for new trial based on newly discovered evidence that a search of his motor vehicle was illegal. The Court transferred the motion to the Sixth Circuit as a second or successive habeas petition. See Docket No. 56, filed Dec. 10, 2014. The Sixth Circuit denied Petitioner's application for permission to file a second or successive habeas petition. See In re Nelson Cobas, No. 14-2565 (6th Cir. May 7, 2015).

         Currently before the Court are Petitioner's Motion to Set Aside the Previous Judgment, his Motion for Leave to Proceed In Forma Pauperis, and his Motion for Relief from Judgment. In his Motion to Set Aside the Previous Judgment, Petitioner alleges that the state trial court mishandled his post-conviction motions and applied the wrong court rule in its decisions. Petitioner contends that the state court's rulings on his post-conviction motions misled him and constituted an impediment to filing a timely habeas petition because the rulings prevented him from filing an appeal that would have tolled the habeas statute of limitation. See Docket No. 58, pages 3-6.

         In his Motion for Relief from Judgment, Petitioner alleges that the state trial court erred by denying his motion for relief from judgment under Michigan Court Rule 6.508(D) without providing any reason for its decision and by failing to refer to any subsection of Rule 6.508(D). As a result, Petitioner contends that this Court was precluded from reviewing the trial court's judgment. See Docket No. 71, pages 2 and 5. In a supporting affidavit and memorandum of law, Petitioner claims that the Court improperly applied the habeas statute of limitations to his case because the statute of limitations is not retroactive. See Docket Nos. 72 and 73.

         II. DISCUSSION

         Petitioner brings his Motion to Set Aside the Previous Judgment and his Motion for Relief from Judgment under Federal Rule of Civil Procedure 60(b), which "allows a party to seek relief from a final judgment, and request reopening of his case under a limited set of circumstances including fraud, mistake, and newly discovered evidence." Gonzalez v. Crosby,545 U.S. 524, 528 (2005). "Rule 60(b)(6), the particular provision under which [Petitioner brought his motion[s], permits reopening when the movant shows 'any . . . reason justifying ...


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