Patterson v. Anderson
OPINION AND ORDER directing the Clerk of the Court of reopen the case to the Court's active docket, denying 2 Rule 60(D) motion for relief from judgment, or, in the alternative, for an independent action, declining to issue a certificate of appealability, and denying leave to appeal in forma pauperis. Signed by District Judge Nancy G. Edmunds. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 2:79-CV-71861
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER (1) DIRECTING THE CLERK OF THE COURT TO REOPEN
THE CASE TO THE COURT’S ACTIVE DOCKET, (2) DENYING PETITIONER’S
RULE 60(D) MOTION FOR RELIEF FROM JUDGMENT OR IN THE ALTERNATIVE
FOR AN INDEPENDENT ACTION, (3) DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND (4) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
On May 31, 1979, petitioner filed a petition for writ of habeas corpus, challenging his
1972 convictions out of Kent County Circuit Court for second-degree murder and armed
robbery. This Court’s predecessor initially granted habeas relief but on reconsideration
denied the petition for writ of habeas corpus.
Petitioner has filed a Rule 60(d) motion for relief from judgment, or in the alternative,
for an independent action.
For the following reasons, the Court orders the Clerk of the Court to reopen the case
to the Court’s active docket. The Court denies in the motion for relief from judgment and/or
motion to file an independent action.
Petitioner has had a long history of litigation in the federal courts. This Court recites
the facts underlying petitioner’s conviction from the Sixth Circuit’s denial of petitioner’s
subsequently filed sixth habeas petition:
On December 21, 1970, plaintiff-appellant Chester Patterson (“Patterson”)
and an accomplice committed an armed robbery. After demanding money
from the store clerk, Patterson told the clerk to lie down on the floor. Though
defendant-appellee Jessie Rivers (“Rivers”) asserts that Patterson then
fatally shot the clerk in the head following the robbery, Patterson asserts that
he merely fired a “warning shot” before fleeing the store. Moreover,
Patterson insists that the clerk was alive when he fled the store following the
robbery. In any event, Patterson pled guilty to second degree murder and
armed robbery and received two concurrent life sentences.
On April 11, 1972, the Michigan Court of Appeals reversed Patterson’s
conviction because Patterson was not sufficiently advised of his constitutional
rights when he entered his guilty plea. On May 12, 1972, Patterson entered
guilty pleas for the second time and, once again, was sentenced to two
concurrent life sentences. The Michigan Court of Appeals and the Michigan
Supreme Court subsequently denied Patterson’s applications for leave to
appeal his conviction, and the Kent County Circuit Court denied Patterson’s
post-conviction motions for a new trial.
The district court dismissed Patterson’s first habeas corpus petition without
prejudice on January 25, 1977, and dismissed Patterson’s second habeas
corpus petition without prejudice on May 4, 1981. On October 27, 1981, the
district court addressed the merits of Patterson’s third habeas corpus petition
and denied relief. This court, however, vacated the district court’s decision
and remanded Patterson’s third habeas corpus petition to district court with
instructions to dismiss the petition in light of Patterson’s failure to exhaust
state remedies pursuant to Rose v. Lundy, 455 U.S. 509 (1982). The district
court did so on August 23, 1983. 1
In his fourth habeas corpus petition, Patterson raised eight grounds for relief.
The district court denied Patterson’s fourth petition on December 13, 1985.
This court affirmed the district court’s decision on August 13, 1987, and the
United States Supreme Court denied Patterson’s petition for a writ of
certiorari on January 19, 1988.
On August 30, 1991, a magistrate judge recommended that Patterson’s fifth
habeas corpus petition be dismissed as an abuse of the writ. On September
This third petition references to the case currently before this Court, 79-CV-
13, 1991, the district court adopted the magistrate judge’s Report and
Recommendation as the opinion of the court and dismissed Patterson’s
Patterson’s sixth habeas corpus petition, which is the subject of this appeal,
raises three claims: (1) ineffective assistance of trial counsel; (2) ineffective
assistance of appellate counsel; and (3) the prosecution’s suppression of
exculpatory evidence. On September 3, 1996, the district court dismissed
Patterson’s sixth habeas corpus petition in accordance with the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) which took effect on April
24, 1996. On September 3, 1997, Patterson moved to reinstate his sixth
habeas corpus petition in light of the Supreme Court’s decision in Lindh v.
Murphy, 521 U.S. 320 (1997), which held that the AEDPA does not apply to
habeas corpus petitions that were pending on the date of its enactment. The
district court agreed with Patterson and, on September 8, 1997, the court:
reinstated Patterson’s sixth habeas corpus petition; reconsidered the petition
under pre-AEDPA standards; and dismissed the petition as an abuse of the
writ pursuant to 28 U.S.C. § 2244(b).
On October 7, 1997, Patterson filed a motion to reconsider the suppression
of exculpatory evidence issue in district court. The district court denied
Patterson’s motion for reconsideration on October 20, 1997. On June 12,
1998, the Sixth Circuit granted Patterson’s motion for a certificate of probable
cause with respect to the suppression of exculpatory evidence issue only.
Patterson v. Rivers, 1999 WL 775800, * 1-2, 191 F.3d 452 (6th Cir. Sep. 24, 1999);
cert. den. 528 U.S. 1089 (2000); reh. den. 528 U.S. 1184 (2000)(internal footnotes
The Sixth Circuit affirmed the denial of petitioner’s sixth habeas petition as an abuse
of the writ. Id., * 2-4.
In 2014, petitioner filed his seventh habeas petition in the United States District
Court for the Western District of Michigan. One of the claims raised in his petition was that
Judge George Cook of the Kent County Circuit Court committed a fraud upon the court by
failing to disclose until 1981 that he was a personal friend of the murder victim’s father.
Petitioner further argued that all of the state court proceedings presided over by Judge
Cook between 1975 and 1981 should be vacated for want of jurisdiction because Judge
Cook was biased due to this relationship. Petitioner further argued that his defense
counsel was ineffective for failing to enforce an order of disqualification entered into
between Judge Cook and the parties on August 13, 1981, which caused Judge Cook to
remain on petitioner’s case until 1988. Petitioner further claimed that the prosecutor
committed misconduct by allowing Judge Cook to remain on his case after the 1981 order
of disqualification had been signed. 2
Petitioner’s seventh habeas petition was dismissed as being barred by the statute
of limitations contained in 28 U.S.C. § 2244(d) and also as an abuse of the writ. Patterson
v. Smith, No. 1:14-CV-878, 2015 WL 5682401 (W.D. Mich. Sept. 18, 2015)(Adopting
Report and Recommendation of Magistrate Judge); app. dism. No. 15-2392 (6th Cir. Apr.
Petitioner has now filed a Rule 60(d) motion for relief for judgment and/or for an
independent action, seeking relief from his conviction. Petitioner argues that he is entitled
to relief from judgment and/or to maintain an independent action under Rule 60(d) because
Judge Cook committed a fraud upon the court by failing to reveal until 1981 that he was
friends with the murder victim’s father, that his defense counsel was ineffective for failing
to enforce the stipulation and order from 1981 disqualifying Judge Cook, that Judge Cook’s
successor judges should also be disqualified on this basis, and that the prosecutor
committed misconduct by concealing Judge Cook’s misconduct in failing to disqualify
himself from the case.
See Patterson v. Smith, No. 1:14-cv-878, Dkt. # 1, PG ID 9-13, Dkt. # 2, PG ID
38-53, Dkt. # 3, PG ID 85-87.
Petitioner seeks to reopen his case and reinstate his original habeas petition. The
Court directs the Clerk of the Court to reopen the case to the Court’s active docket in order
to facilitate the adjudication of petitioner’s motion. See Heximer v. Woods, No.
2:08-CV-14170, 2016 WL 183629, * 1 (E.D. Mich. Jan. 15, 2016).
Petitioner claims that he is entitled to relief from judgment and/or maintain an
independent action pursuant to Fed. R. Civ. P. 60(d) because Judge Cook of the Kent
County Circuit Court, who presided over the proceedings in his criminal case between
1975-1981, was biased against him because he was friends with the murder victim’s
father.3 Petitioner claims that Judge Cook committed a fraud upon the court by failing to
disclose this fact until 1981 and also for remaining on the case until 1988 even though the
parties entered into a stipulation in 1981 for Judge Cook to recuse himself from the case.
Petitioner also claims that defense counsel was ineffective for permitting Judge Cook to
remain on the case after the disqualification order was signed in 1981 and that the
prosecutor committed misconduct and a fraud upon the court by failing to object to Judge
Cook remaining on the case after he had recused himself in 1981.
“The ‘indisputable elements’ of an independent action for relief from judgment 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
Petitioner does not specify in his motion what these proceedings were. In light
of the fact that petitioner had already pleaded guilty and been sentenced in 1972, this
Court assumes that these proceedings were all post-appeal in nature.
benefit of his [or her] defense; (4) the absence of fault or negligence on the part of the
defendant; and the absence of any adequate remedy at law.” Mitchell v. Rees, 651 F. 3d
593, 595 (6th Cir. 2011). More importantly, an independent action pursuant to Fed. R. Civ.
P. 60 is “available only to prevent a grave miscarriage of justice.” Id. (quoting United States
v. Beggerly, 524 U.S. 38, 47 (1998)). In the context of a habeas or habeas type case, in
order to establish that relief is required to prevent a grave miscarriage of justice, so as to
maintain an independent action pursuant to Fed. Rule Civ. P. 60, a habeas petitioner must
make a strong showing of his or her actual innocence. Id, at pp. 595-96 (citing Calderon
v. Thompson, 523 U.S. 538, 557–58 (1998); Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
Petitioner is not entitled to maintain an independent action for relief from judgment
pursuant to Fed. R. Civ. P 60(d) for several reasons.
First, petitioner is not entitled to bring an independent action under Rule 60(d)
because he previously had an opportunity to bring the allegations of judicial bias, fraud on
the court, ineffective assistance of counsel, and prosecutorial misconduct to the attention
of the federal district court and the Sixth Circuit in his 2014 habeas petition. See Mitchell,
651 F. 3d at 598-99. Because petitioner had an opportunity to raise his current claims in
his 2014 habeas petition, he cannot bring an independent action under Rule 60(d). Id.
Secondly, petitioner has failed to show that a fraud was been committed upon this
The elements of fraud upon the court consists of conduct:
1. on the part of an officer of the court;
2. that is directed to the “judicial machinery” itself;
3. that is intentionally false, wilfully blind to the truth, or is in reckless disregard
for the truth;
4. that is a positive averment or is concealment when one is under a duty to
5. that deceives the court.
Demjanjuk v. Petrovsky, 10 F. 3d 338, 348 (6th Cir. 1993).
Petitioner’s “fraud on the court” claim is without merit.
The first problem with petitioner’s “fraud on the court” argument is that other than his
conclusory assertions, petitioner has presented no evidence to this Court that the attorneys
representing the State of Michigan in his 1979 habeas case carried out a deliberate or
reckless fraud on the federal district court, so as to entitle him to relief from judgment based
upon a fraud committed upon this Court. See Alley v. Bell, 392 F. 2d 822, 831 (6th Cir.
2004). Petitioner presented no evidence to this Court that the Michigan Attorney General’s
Office at the time of his habeas case in 1981 knew or had been made aware of Judge
Cook’s friendship with the victim’s father and any bias arising from that relationship.
In addition, petitioner’s fraud on the court claim with respect to Judge Cook, his
defense counsel, or the Kent County Prosecutor or any assistant prosecutors is meritless
because he failed to show with respect to these individuals that any alleged fraud was
committed by an officer of this Court. (emphasis supplied). In order for a claim of fraud on
the court to succeed, so as to permit relief from a state conviction pursuant to Fed.R. Civ.
P. 60, “the fraud must have been committed by an officer of the federal habeas trial or
appellate courts.” Buell v. Anderson, 48 F. App’x. 491, 499 (6th Cir. 2002)(citing Workman
v. Bell, 227 F. 3d 331, 336, 341 (6th Cir. 2000)(en banc)). Because neither Judge Cook,
defense counsel, or the Kent County Prosecutor or any of his assistants were acting as an
officer of the federal habeas court, the “fraud upon the court” exception does not apply to
permit petitioner to maintain an independent action for relief from judgment. Id.
Petitioner is also not entitled to maintain an independent action for relief from
judgment to challenge his state criminal court conviction because he failed to show that
there has been a grave miscarriage of justice in his case. Mitchell, 651 F. 3d at 599.
Petitioner has neither alleged or established his actual innocence of the crime that he was
convicted, particularly in light of the fact that he pleaded guilty to these charges. See
Prescott v. Gidley, No. 14-13220, 2016 WL 3549343, * 2 (E.D. Mich. June 30, 2016).
Accordingly, he cannot maintain an independent action for relief from judgment pursuant
to Fed. R. Civ. P. 60(d).
IV. A Certificate of Appealability
Before petitioner may appeal this decision, a certificate of appealability must issue.
See 28 U.S.C. § 2253(c)(1)(a); Fed. R.App. P. 22(b). 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 district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claims, a certificate of
appealability should issue, and an appeal of the district court’s order may be taken, if the
petitioner shows 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 district court was correct in its procedural ruling. Slack v. McDaniel,
529 U.S. 473, 484 (2000). When a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that
the district court erred in dismissing the petition or that the petition should be allowed to
proceed further. In such a circumstance, no appeal would be warranted. Id. “The district
court must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254. A
certificate of appealability is required for a habeas petitioner to appeal the denial of a Rule
60(d) motion for an independent action. See e.g. Mitchell, 651 F. 3d at 594.
Petitioner is not entitled to a certificate of appealability from the denial of his Rule
60(d) motion, because he failed to make a substantial showing of the denial of a
constitutional right or that this Court’s procedural ruling was incorrect. The Court will also
deny petitioner leave to appeal in forma pauperis, because the appeal would be
frivolous.See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
The Court ORDERS that:
(1) The Clerk of the Court reopen the case to the Court’s Active Docket.
(2) The Rule 60(d) motion for relief from judgment/or in the alternative for an
independent action [Dkt. # 2] is DENIED.
(3) Petitioner is denied a certificate of appealability.
(4) Petitioner is DENIED Leave to Appeal In Forma Pauperis
s/ Nancy G. Edmunds
HON. NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: February 7, 2018
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