United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING MOTION FOR RELIEF FROM
JUDGMENT (Doc. 91)
HONORABLE AVERN COHN, JUDGE
a habeas corpus case under 28 U.S.C. § 2254 which is
long since closed. In 2002, Petitioner Andrew Roush filed a
petition attacking his 1997 state court conviction for
first-degree criminal sexual conduct. The Court denied the
petition in 2006.
the Court is Petitioner's motion for relief from
judgment. For the reasons that follow, the motion will be
background, including the facts presented at trial and
procedural history, was set forth in the Court's order
denying habeas relief and will not be repeated. Briefly, the
charges against Petitioner arose from the allegation he
penetrated his seven-year old stepdaughter's anus in
1993. The child did not disclose the alleged abuse until 1996
when she was ten years old. She was eleven years old by the
time she testified at trial in 1997. The jury convicted
Petitioner of one count of first-degree criminal sexual
conduct. See M.C.L. §750.520b(1)(a). The jury
was unable to reach a decision on the other count of
first-degree criminal sexual conduct. The trial court
subsequently sentenced Petitioner to life imprisonment.
Petitioner filed a direct appeal. The court of appeals
affirmed in an unpublished per curiam opinion.
See People v. Roush, No. 202850 (Mich. Ct. App. Dec.
1, 1998). The Michigan Supreme Court denied leave in a
standard order. See People v. Roush, 603 N.W.2d 265
returned to the state trial court to pursue collateral
relief. He was denied at all levels. See People v.
Roush, No. 96-3122 FC (Calhoun County Cir. Ct. Nov. 17,
2000); People v. Roush, No. 236736 (Mich. Ct. App.
Dec. 10, 2001); People v. Roush, 649 N.W.2d 80
then filed a habeas petition, raising multiple claims.
Following receipt of Respondent's answer, the Court
appointed counsel for Petitioner, who supplemented the habeas
petition with a claim of ineffective assistance of appellate
counsel (claim XIII). Petitioner asserted that his appellate
counsel should have challenged trial counsel's
representation. The Court dismissed claims I through III and
IX through XII because the claims lacked merit. The Court
determined that the claims about Petitioner's trial and
appellate attorneys (IV through VIII and XIII) had arguable
merit and required an evidentiary hearing. (Doc. 41).
Court conducted an evidentiary hearing, directed supplemental
briefing, and heard oral argument on Petitioner's
ineffective-assistance-of-counsel claims. The Court denied
relief but granted Petitioner a certificate of appealability.
(Doc. 80). Petitioner appealed. The Sixth Circuit denied
relief. See Doc. 87. The Supreme Court denied
certiorari. See Doc. 89. Later, in 2017, Petitioner
sought permission to file a second habeas petition; the Sixth
Circuit denied authorization. See Doc. 90.
2019, nearly thirteen years after the Court denied habeas
relief, Petitioner filed the instant motion for relief from
60(b) 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). Specifically, Rule 60(b) provides:
On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or