Merriweather v. Hofbauer

Filing 100

AMENDED ORDER Denying Petitioner's April 02, 2015 91 MOTION for Relief from Judgment, and Denying a Certificate of Appealability and Leave to Appeal In Forma Pauperis. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM A. MERRIWEATHER,
Petitioner,

No. 99-cv-75306
Hon. Gerald E. Rosen

vs.
BONITA J. HOFFNER, Warden,
Respondent.
___________________________/

AMENDED ORDER DENYING PETITIONER’S APRIL 2, 2015 MOTION FOR
FOR RELIEF FROM JUDGMENT, AND DENYING A CERTIFICATE
OF APPEALABLITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on May 13, 2015
PRESENT: Honorable Gerald E. Rosen
United States District Chief Judge

On August 31, 2001, this Court entered an Opinion and Order and Judgment
denying William A. Merriweather’s Petition for a Writ of Habeas Corpus and dismissed
this action in its entirety. After failing to succeed with his appeals to the Sixth Circuit
Court of Appeals and to the Supreme Court, six years later, on July 26, 2007, Petitioner
returned to this Court with a Fed. R. Civ. P. 60(b) Motion for Relief from Judgment
which this Court denied both on procedural grounds as untimely, and on the merits. The
Sixth Circuit found no merit in Petitioner’s appeal from this Court’s order, and denied
Petitioner’s request for a certificate of appealability, and dismissed Petitioner’s appeal on
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March 18, 2008.
On April 2, 2015, Petitioner submitted another Rule 60(b) Motion for Relief from
Judgment in which he seeks reconsideration of the Court’s denial of his habeas petition
based upon the Court’s failure to expressly rule on a motion he filed for an evidentiary
hearing before it ruled on the merits of his habeas corpus petition. Petitioner’s motion for
evidentiary hearing was among the motions upon which his July 2007 Rule 60(b) Motion
was predicated.
As indicated, the Court has already determined that Petitioner’s previous motion
was untimely, and the Court of Appeals agreed. That Plaintiff now purports to bring his
Motion under Rule 60(b)(6) instead of under Rule 60(b)(1), (2) or (4) as he previously
did does not change the result. As the Court stated in denying Petitioner’s earlier motion,
As explicitly stated in the Rule, motions brought under subsections (4), (5)
and (6) of Rule 60(b) must be brought “within a reasonable time.” Yet,
Petitioner waited for nearly six years before filing his Motion. This clearly
was not “within a reasonable time.” See, e.g., United States v. Assad, 179
FRD 170, 172 (M.D.N.C. 1998) (holding that one year is the outside limit
for filing a Rule 60(b) motion “within a reasonable time”); Amoco Overseas
Oil Co. v. Compagnie Nationale Algerieene de Navigation, 605 F.2d 648,
656 (2nd Cir. 1979) (Rule 60(b) motion filed ten months after judgment
held not to have been timely filed).

[8/8/07 Order Denying Petitioner’s Rule 60(b) Motion for Relief from Judgment or
Order, Dkt. # 83, pp. 2-3 (footnote omitted and emphasis added.)]
The instant motion, filed 14 years after entry of Judgment, is even more untimely.
Furthermore, both the U.S. Supreme Court and this Court have repeatedly held
that relief under Rule 60(b) -- particularly under subsection (6) -- is “extraordinary relief”
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to be granted only in exceptional circumstances. Ackermann v. United States, 340 U.S.
193, 202 (1950); Mallory v. Eyrich, 922 F.2d 1273, 1281 (6th Cir. 1991); Hopper v.
Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989); Pierce v. UMW
Welfare & Retirement Fund, 770 F.2d 449, 451 (6th Cir. 1985), cert. denied, 474 U.S.
1104 (1986).
Exceptional circumstances under Rule 60(b)(6) means “unusual and extreme
situations where principles of equity mandate relief.” Olle v. Henry & Wright Corp., 910
F.2d 357, 365 (6th Cir. 1990) (emphasis in original). A claim of simple legal error,
unaccompanied by extraordinary or exceptional circumstances, is not cognizable under
Rule 60(b). Pierce v. UMW Welfare & Retirement Fund, supra, 770 F.2d at 451.
No such exceptional circumstances have been shown by Petitioner Merriweather.
Indeed, pursuant to the Rules Governing Habeas Cases under 28 U.S.C. § 2254, the
determination of whether to conduct a hearing is left to the discretion of the court. As
provided in Rule 8,
If the petition is not dismissed, the judge must review the answer, any
transcripts and records of state-court proceedings and any materials
submitted under Rule 7 to determine whether an evidentiary hearing is
warranted.
Clearly, the Court determined that no evidentiary hearing was needed in
Petitioner’s case. The Court of Appeals agreed. In fact, the appellate court expressly
denied the motion filed by Petitioner in that court to remand the case to this Court to
conduct an evidentiary hearing. See Sixth Circuit 4/30/02 Order at Dkt. #77.
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For the foregoing reasons, Petitioner’s Motion for Relief from Judgment will be
DENIED.
Before Petitioner may appeal, 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 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. See Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). When a court denies relief on procedural grounds without addressing
the merits, 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 district
court was correct in its procedural ruling. Id. Having undertaken the requisite review, the
court concludes that jurists of reason would not find the Court’s ruling debatable. The
Court also will also deny Petitioner permission to appeal in forma pauperis because any
appeal would be frivolous.
ORDER
For all of the reasons stated above,
IT IS HEREBY ORDERED that Petitioner’s Motion for Relief from Judgment

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[Dkt. # 91] is DENIED.1
IT IS FURTHER ORDERED that a certificate of appealability and
permission to appeal in forma pauperis are DENIED.

S/Gerald E. Rosen
Chief Judge, United States District Court
Dated: May 13, 2015
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on May 13, 2015, by electronic and/or ordinary mail.
S/Julie Owens
Case Manager, [phone]

1

To the extent that Petitioner intended that his Motion to Amend Rule 60(b)
Motion [Dkt. # 89] be directed to this Rule 60(b) Motion, and not his July 2007 Motion
as indicated in the Court’s 4/13/15 Order, the Court hereby corrects the April 13 Order
[Dkt. # 90] to so reflect that fact. Though the Motion to Amend was docketed on April
9th, Petitioner’s 4/2/15 Motion was not entered on the docket until six days later, on
April 15th, after the Court had entered its 4/13/15 Order denying Petitioner’s motion to
amend as moot. Though not moot, the Court nonetheless concludes that the motion was
properly denied as amendment of Petitioner’s 4/2/15 Rule 60(b) Motion would be futile.
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