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Pann v. Warren

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

May 8, 2019

ROBERT PANN, #254048, Petitioner,
v.
MILLICENT WARREN, Respondent.

          ORDER (1)DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND SUSPENSION OF FEES AND COSTS, (2) DENYING IN PART MOTION FOR RELIEF FROM JUDGMENT, AND (3) TRANSFERRING CASE TO THE SIXTH CIRCUIT

          MARK A. GOLDSMITH United States District Judge

         This matter is before the Court on Petitioner's pro se motion for leave to proceed in forma pauperis and suspension of fees and costs and his pro se motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(d) arising from the Court's denial of his federal habeas petition in 2011. Following that decision, the United States Court of Appeals for the Sixth Circuit ruled that the Court properly denied habeas relief and denied a certificate of appealability. Pann v. Smith, No. 11-2292 (6th Cir. 2012). The United States Supreme Court denied certiorari, Pann v. Smith, 571 U.S. 974 (2013), and denied rehearing. Pann v. Smith, 571 U.S. 1158 (2014). Petitioner filed a motion to reopen this case in 2014 and a motion to amend that pleading in 2015, both of which the Court denied. The Sixth Circuit dismissed Petitioner's appeal as untimely, and denied reconsideration. Pann v. Burt, No. 15-1310 (6th Cir. 2015). The Supreme Court denied certiorari. Pann v. Burt, 136 S.Ct. 989 (2016). The instant motions were filed on March 25, 2019.

         As an initial matter, the Court finds that Petitioner's motion for leave to proceed in forma pauperis and suspension of fees and costs is unnecessary. Petitioner paid the $5.00 filing fee for this habeas action when he submitted his initial habeas petition and there are no additional motion fees applicable in this case. Accordingly, the Court denies Petitioner's motion for leave to proceed in forma pauperis and suspension of fees and costs.

         In his motion for relief from judgment, Petitioner continues to contest the Court's denial of his habeas petition and seeks relief under Federal Rule of Civil Procedure 60(d). That rule provides:

Other Powers to Grant Relief. This rule does not limit a court's power to:
(1) entertain an independent action to relieve a party from a judgment, order, or proceeding;
(2) grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of the action; or
(3) set aside a judgment for fraud on the court.

         Fed. R. Civ. P. 60(d). An independent action under Rule 60(d) is an equitable action, which has no time limitation. Mitchell v. Rees, 651 F.3d 593, 594-595 (6th Cir. 2011). Its elements are:

(1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law.

Id. at 595 (citing Barrett v. Secretary of Health & Human Svs., 840 F.2d 1259, 1263 (6th Cir. 1987)). An independent action under Rule 60(d) is available to prevent “a grave miscarriage of justice.” Id. (quoting United States v. Beggerly, 524 U.S. 38, 47 (1998), and citing cases). This is a “‘stringent' and ‘demanding' standard, ” and, because Petitioner seeks relief from judgment in a habeas case, he must make a strong showing of actual innocence to establish that relief is required. Id. at 595-596 (citing Calderon v. Thompson, 523 U.S. 538, 557-558 (1998), and Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).

         Petitioner makes no such showing. While he alleges “fraud” upon the Court in his motion, he actually raises a claim of prosecutorial misconduct/perjured testimony in the state courts (which he believes invalidates this Court's decision on habeas review). To the extent that Petitioner re-argues issues previously addressed by the Court and/or raises issues which could have been presented in his initial habeas proceeding through the exercise of reasonable diligence, his allegations do not warrant the extraordinary remedy he seeks in this action. Petitioner fails to show that the Court erred in denying his habeas petition, that he is actually innocent, or that he is otherwise entitled to relief under Federal Rule of Civil Procedure 60(d). Accordingly, the Court denies in part Petitioner's motion for relief from judgment.

         Before Petitioner may appeal this ruling, a certificate of appealability must issue. A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the court's assessment of the claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief on procedural grounds, a certificate of appealability should issue if it is shown that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the court was correct in its procedural ruling. Id.

         With Slack v. McDaniel in mind, judges within this district have adopted the following standard for determining whether a certificate of appealability should issue in ...


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