United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITIONER'S MOTION
FOR RELIEF FROM JUDGMENT (Doc. 35) AND DENYING A CERTIFICATE
COHN, UNITED STATES DISTRICT JUDGE.
Scott Varner, (“Petitioner”), filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction for unlawful
possession of controlled substances with intent to deliver
and resisting and obstructing a police officer. The Court
denied the petition for writ of habeas corpus and declined to
issue a certificate of appealability. (Doc. 26). Petitioner
then filed a “Motion for Amended or Additional Findings
and Motion to Alter or Amend Judgment” which the Court
denied. (Doc. 29). Petitioner has filed a Notice of Appeal.
the Court is Petitioner's “Motion for relief from
Order and Judgment” under Rule 60(b). For the reasons
that follow, the motion will be denied.
raised two Fourth Amendment claims. The Court denied the
petition on the grounds that under Stone v. Powell,
428 U.S. 465, 494-95 (1976), Petitioner's claims were
non-cognizable on habeas review because he had a full and
fair opportunity to litigate his Fourth Amendment claims in
Rule 60(b) motion, Petitioner argues that Stone v.
Powell does not apply because he did not raise his
Fourth Amendment claims merely to seek the suppression of the
cocaine seized in this case, but also to challenge his
conviction for resisting and obstructing a police officer.
Petitioner argues that the alleged illegality of the search
and arrest in this case raises an issue related to his
innocence, at least on the resisting and obstructing a police
initial matter, the Court lacks jurisdiction to consider
Petitioner's motion because he has filed a notice of
appeal in this case. A notice of appeal generally
“confers jurisdiction on the court of appeals and
divests the district court of control over those aspects of
the case involved in the appeal.” Marrese v.
American Academy of Orthopaedic Surgeons, 470 U.S. 373,
379 (1985)(citing Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982)(per curiam)). “After
an appeal of a trial court's final judgment has been
perfected by the filing of a notice of appeal, the trial
court no longer has jurisdiction to grant a Rule 60(b)
motion.” Pickens v. Howes, 549 F.3d 377, 381
(6th Cir. 2008). However, “If the district judge
believes there should be relief from the judgment, the
district court is to indicate that it would grant the motion.
The appellant should then make a motion in this court for a
remand of the case so that the district court can grant
relief.” Id. (quoting Bovee v. Coopers
& Lybrand C.P.A., 272 F.3d 356, 359 n. 1 (6th Cir.
even assuming the Court had jurisdiction, the Court would not
grant Petitioner's motion. The Court has reviewed the
original petition for writ of habeas corpus (Doc. 1), the
brief in support of the petition (Doc. 4), and the reply
brief. (Doc. 18). Nowhere did Petitioner argue that the
alleged illegality of the search and arrest in this case
provided a defense to the resisting and obstructing a police
officer conviction or otherwise establish his innocence to
the charge. A Rule 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 his new argument that his Fourth
Amendment claim is cognizable because it establishes his
innocence for the first time in his Rule 60(b) motion.
Petitioner is not entitled to a certificate of appealability
from the denial of his motion for relief from judgment
because he has failed to make a substantial showing of the
denial of a constitutional right or that the Court's
procedural ruling was incorrect.
reasons stated above, Petitioner's motion for relief from
judgment is DENIED. A certificate ...