United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION TO REOPEN JUDGMENT AND DENYING
MOTION TO AMEND PRESENTENCE REPORT
L. LUDINGTON UNITED STATES DISTRICT JUDGE
19, 2015, Defendant-Petitioner Joseph Larmont Jeffrey was
sentenced to 140 months of incarceration for distributing
cocaine base and aiding and abetting the same. ECF No. 157.
Jeffrey did not appeal. On March 28, 2016, Jeffrey filed a
motion for relief. ECF No. 213. Later, Jeffrey clarified that
he was requesting relief under 28 U.S.C. § 2255. ECF No.
219. Jeffrey subsequently filed a motion to amend his motion
to vacate his sentence. ECF No. 245. Each of these motions
were referred to Magistrate Judge Patricia T. Morris. ECF
Nos. 221, 246.
October 25, 2016, Judge Morris issued a report recommending
that Jeffrey's motions be denied and the civil case
dismissed. ECF No. 247. That report and recommendation was
adopted over Jeffrey's objections on February 28, 2017.
ECF No. 265. On October 19, 2017, Jeffrey filed a motion to
correct a clerical error in his presentence report. ECF No.
277. On December 6, 2017, Jeffrey also filed a motion to
reopen the judgment denying his petition for habeas relief.
For the following reasons, both motions will be denied.
motion to reopen the judgment seeks relief pursuant to
Federal Rule of Civil Procedure 60(b)(1), (2), and (6). Rule
60(b) authorizes the Court to “relieve a party or its
legal representative from a final judgment, order, or
proceeding” for several reasons, including
“mistake, inadvertence, surprise, or excusable neglect,
” and “newly discovered evidence that, with
reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b).” Rule
60(b)(6) is a catchall provision that authorizes the Court to
provide relief for “any other reason that justifies
relief.” Jeffrey argues that the judgment should be
reopened (thus providing a new period to appeal) because he
missed the prior deadline to appeal because of “mental
problems/[i]mpediments.” Mot. Reopen at 3, ECF No. 278.
The Sixth Circuit has approved use of Rule 60(b) to reopen
the appeal period. See Tanner v. Yukins, 776 F.3d
434, 441 (6th Cir. 2015) (“Rule 60(b) is an appropriate
means of considering equitable interests when a notice of
appeal is filed late for reasons other than lack of
indicates that he received the Court's February 28, 2017,
judgment on or about May 18, 2017, when his family gave him a
copy of the order and judgment. Mot. Reopen at 3. He further
explains his delay in seeking a new appeal period by offering
the following explanation: “Petitioner suffers from
learning disabilities and he was relying on another inmate,
who was apparently incompetent and negligent because, among
other things, the other inmate should have immediately moved
the Court” to reopen the appeal. Id. at 4.
explanations do not identify any newly discovered evidence
which would have impacted the underlying legal analysis.
Likewise, Jeffrey has not identified excusable neglect. If
Jeffrey relies on family members and fellow inmates to
apprise him of the status of his petition, he does so at his
own risk. Jeffrey was mailed a copy of the order and
judgment, and has not indicated why that service was
ineffective. And, regardless, Jeffrey admits that he had
notice of the Court's denial of his motion to vacate on
May 18, 2017. Jeffrey has not provided a justification for
the seven month delay in seeking relief from that judgment.
Even if Jeffrey was relying upon another inmate to prepare
and file his legal filings, he bears the ultimate
responsibility for motions and briefs filed under his own
name and on his behalf. In fact, the unauthorized practice of
law (which includes preparation of documents on behalf of
another person) is prohibited by Michigan law. See
importantly, the substantive legal arguments which Jeffrey
makes in his motion do not identify an error in the
Court's prior rationale. In the February 27, 2017, order,
the Court concluded that any appeal would be frivolous. A
brief discussion of Jeffrey's present arguments will
demonstrate that Jeffrey has once against failed to make a
substantial showing of the denial of a constitutional right.
Jeffrey challenges the Court's prior conclusion that the
definitions of “delivery” under both federal law
and Michigan law are coterminous. See Feb. 27, 2017,
Order at 7. Jeffrey argues that Michigan courts have
held that “sharing” a controlled substance in a
social setting can satisfy the delivery element. See
People v. Schultz, 246 Mich.App. 695, 704 (2001).
Jeffrey believes that the federal definition of
“delivery” does not encompass sharing on social
situations, but that is not true (at least in the Sixth
Circuit). In United States v. Clark, the Sixth
Circuit held that the defendant had distributed controlled
substances when he divided drugs with his wife and friends.
634 F.3d 874, 877 (6th Cir. 2011) (“We have held that
an individual who shares drugs with a friend possesses the
intent to distribute.”).
Jeffrey argues that his state crime of conviction was broader
than the analogous federal crime because “the Michigan
State Courts have held that no knowledge of a particular
substance is necessary to convict so long as he knew he was
delivering a ‘controlled substance'
generally.” Mot. Reopen at 10 (citing People v.
Zion, 93 Mich.App. 576 (1979). The same is true under
federal law. See McFadden v. United States, 135
S.Ct. 2298, 2304 (2015) (“That knowledge requirement
may be met by showing that the defendant knew he possessed a
substance listed on the schedules, even if he did not know
which substance it was.”).
Jeffrey contends that his state crime of conviction was
broader than the analogous federal crime because the Michigan
crime of which he was convicted also criminalized delivery of
“a prescription form, or a counterfeit prescription
form.” M.C.L. 333.7401(1) (“[A] person shall not
manufacture, create, deliver, or possess with intent to
manufacture, create, or deliver a controlled substance, a
prescription form, or a counterfeit prescription
form.”). The analogous federal definition does not
reference prescription forms (counterfeit or otherwise). But
that difference is important only if 333.7401(1) involves
alternative means, not alternative elements.
Sixth Circuit has held that the different offenses listed in
333.7401(1) are alternative elements. See United States
v. Tibbs, 685 Fed.Appx. 456, 463 (6th Cir. 2017), cert.
denied, No. 17-5099, 2017 WL 2909378 (U.S. Oct. 2, 2017)
(“[I]t appears that in Michigan, defendants are
generally charged with a particular form of the various
offenses listed in the statute-manufacture, creation, or
delivery or possession with intent to manufacture, create, or
deliver a controlled substance, a prescription form, or a
counterfeit prescription-and the act they are charged with
becomes an element of the offense.”) (citing People
v. Linton, No. 328930, 2016 WL 7333422, at *2 (Mich. Ct.
App. Dec. 15, 2016); People v. Mass, 464 Mich. 615,
626, 628 N.W.2d 540, 547 (2001); People v. Wolfe,
440 Mich. 508, 516, 489 N.W.2d 748, 752 (1992), amended (Oct.
9, 1992)). Petitioner has identified no Michigan law which
holds that ...