United States District Court, E.D. Michigan, Southern Division
ORDER TRANSFERRING PETITIONER'S RULE 60 (B)
MOTION TO THE COURT OF APPEALS AS A SECOND OR SUCCESSIVE
HABEAS PETITION UNDER 28 U.S.C. S 2244(B)(3)(A)
J. TARNOW UNITED STATES DISTRICT JUDGE.
a habeas corpus action under 28 U.S.C. § 2254.
Petitioner Robert Riley is serving a life sentence for
first-degree, felony murder, Mich. Comp. Laws §
750.316(1)(b). The conviction arose from an incident during
which Petitioner allegedly aided and abetted his co-defendant
in strangling the victim and then stealing some of the
victim's personal property. The Michigan Court of Appeals
twice reversed Petitioner's conviction and remanded the
case for entry of a judgment of conviction for larceny in a
building. The Michigan Supreme Court, however, reversed the
lower court's decisions and ultimately reinstated
Petitioner's murder conviction. See People v.
Riley, 468 Mich. 135; 659 N.W.2d 611 (2003).
filed his habeas corpus petition in 2004. On September 15,
2005, the Court granted the petition on the basis that
Petitioner's trial counsel rendered constitutionally
ineffective assistance by failing to move for a directed
verdict of acquittal at the close of the prosecution's
ease. The State appealed the Court's decision, and on
April 3, 2007, the United States Court of Appeals for the
Sixth Circuit reversed this Court's decision and remanded
the case for entry of an appropriate order. See Riley v.
Berghuis, 481 F.3d 315 (6th Cir. 2007). According to the
Court of Appeals, Petitioner failed to show that his
attorney's performance prejudiced the defense.
Id. at 324. On remand, this Court vacated its
amended judgment and entered judgment in favor of the State.
before the Court is Petitioner's motion for relief from
judgment. Petitioner argues that the Court should reissue its
opinion and judgment granting the writ of habeas corpus
because he was convicted of a non-existent offense.
Specifically, Petitioner claims that there was no evidence at
trial that he possessed the intent to steal the victim's
personal property contemporaneously with the murder and,
therefore, he is not guilty of felony murder.
brings his motion under Federal Rule of Civil Procedure
60(b), which "allows a party to seek relief from a final
judgment, and request reopening of his ease 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 [P]etitioner brought his motion,
permits reopening when the movant shows 'any .. . reason
justifying relief from the operation of the judgment'
other than the more specific circumstances set out in Rules
60(b)(1)-(5)." Id. at 528-29.
instances, such as when a petitioner is asserting a new claim
or a claim based on newly-discovered evidence or a subsequent
change in the law, a Rule 60(b) motion can be treated as a
second or successive habeas petition. Id. at 530-31.
Therefore, a preliminary question is whether Petitioner's
pending motion is really another habeas petition, because he
is not entitled to file a second or successive habeas
petition without first seeking, and obtaining, permission
from the appropriate court of appeals to do so. 28 U.S.C.
document that seeks vindication of a claim is, if not in
substance a habeas petition, at least similar enough to
subject it to the same requirements. Id. at 531. A
document asserts a claim if it "attacks the federal
court's previous resolution of a claim on the
merits." Id. at 532. In contrast, a Rule 60(b)
motion does not advance a "claim," when it attacks,
not the substance of the federal court's resolution of a
claim on the merits, but some defect in the integrity of the
federal habeas proceedings." Id.
to Petitioner, the Court failed to recognize in its
dispositive opinion that he was convicted of a non-existent
offense. This argument is actually a challenge to the
sufficiency of the evidence at Petitioner's state
criminal trial. It is a claim that the Court decided against
Petitioner in 2005. Therefore, Petitioner's motion is, in
essence, a second or successive habeas petition, and because
Petitioner has not acquired permission to file another habeas
petition, the Court must transfer his motion to the Court of
Appeals for a determination on whether this Court may
adjudicate Petitioner's claim. In re Sims, 111
F.3d 45, 47 (6th Cir. ...