Zimmerman v. Jones

Filing 70

OPINION AND ORDER reopening case, denying in part 68 Motion for relief from judgment, transferring in part the 68 Motion for relief from judgment and 69 Application to proceed without prepayment of fees and costs to the United States Court of Appeals pursuant to 28 U.S.C. 2244(b)(3)(A). Signed by District Judge Marianne O. Battani. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RASCHID ZIMMERMAN,
Petitioner,

Civil No. 03-60173-AA
HONORABLE MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE

v.
BARRY DAVIS,
Respondent,
/

OPINION AND ORDER (1) REOPENING THE CASE TO THE COURT’S
ACTIVE DOCKET, (2) DENYING IN PART THE MOTION FOR RELIEF FROM
JUDGMENT [Dkt. 68], and (3) TRANSFERRING IN PART THE MOTION FOR
RELIEF FROM JUDGMENT [Dkt. # 68] AND THE APPLICATION TO
PROCEED WITHOUT PREPAYMENT OF FEES AND COSTS [Dkt. # 69] TO
THE COURT OF APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
Raschid Zimmerman, (“Petitioner”), confined at the Saginaw Correctional
Facility in Freeland, Michigan, has filed a motion for relief from judgment
pursuant to Fed. R. Civ. P. 60(b). For the following reasons, the Court orders the
Clerk of the Court to reopen the case to the Court’s active docket. The Court will
deny in part the 60(b) motion for relief from judgment. The Court will also transfer
the Rule 60(b) motion and the related request to proceed without prepaying fees
and costs on appeal to the United States Court of Appeals pursuant to 28 U.S.C.
§ 2244(b)(3)(A) for authorization to file a second or successive habeas petition.
I. Background
Petitioner previously filed a petition for writ of habeas corpus, in which he
1

challenged his conviction out of the Wayne County Circuit Court for two counts of
second-degree murder, and one count of felony-firearm. This Court quotes
verbatim the history of petitioner’s prior habeas petition from the Sixth Circuit
opinion affirming this Court’s denial of the petition for writ of habeas corpus:
A. Factual Background
In 1999, Petitioner was charged with two counts of first-degree murder
and one count of possession of a firearm during the commission of a
felony for the February 1999 shooting deaths of Marcel Thomas and
Eugene Hill. Upon the recommendation of trial counsel, David Cripps,
Petitioner knowingly and voluntarily signed a waiver of jury trial
pursuant to Mich. Comp. Laws § 763.3 and Michigan Court Rule
6.402(B). Petitioner asserts, however, that shortly thereafter he sought
to withdraw his waiver through his attorney before the bench trial
commenced, but that Cripps was non-responsive to his requests.
Petitioner discussed his uneasiness about the lack of communication
with Cripps and the upcoming bench trial with Anne Claire Van Ash, his
attorney for an unrelated matter. Van Ash attempted to contact Cripps
on Petitioner’s behalf, but was equally unsuccessful. She wrote Cripps
a letter in which she stated that Petitioner was having second thoughts
about waiving his right to a jury trial, but Cripps never responded to her.
Petitioner asserted that he did not speak with Cripps until the day of
trial, and it was then that Cripps informed him that his request to
withdraw his jury waiver was “too late.” (R. 51, at PID # 1349.)
B. Procedural History
Trial and Sentence
After a seven-day bench trial, Petitioner Raschid Zimmerman was
convicted on two counts of second-degree murder, in violation of Mich.
Comp. Laws § 750.317, for the shooting deaths of Marcel Thomas and
Eugene Hill, and on one count of felony possession of a firearm, in
violation of § 750.227b. Although there was no physical evidence tying
Petitioner to the crimes, two witnesses for the state testified that
Petitioner was present at a party hosted by the witnesses and victims,
that Petitioner was dressed in a bulletproof vest and was carrying two
2

weapons, and that he began arguing with the victims immediately
before the murders occurred. The trial court found the two witnesses
credible, but convicted Petitioner of second-degree murder because
there was insufficient evidence to establish that the murders were
premeditated, as required for first-degree murder. Petitioner was
sentenced as a habitual offender to two concurrent terms of thirty to fifty
years’ imprisonment for the murder convictions, and a consecutive
two-year sentence for the possession charge.
Direct Appeal
Petitioner appealed his conviction to the Michigan Court of Appeals.
His appellate counsel argued a number of evidentiary issues that are
not at issue in this appeal. Petitioner submitted a pro per brief in
connection with his appeal, which asserted several bases for an
ineffective-assistance-of-trial-counsel claim. The Michigan Court of
Appeals listed the “spurious claims” identified in Petitioner’s pro per
brief:
Specifically, he argue[d] that his attorney (1) presented no
theory of innocence, (2) failed to investigate and present
a defense, (3) failed to meet with defendant prior to trial,
(4) gave defendant “false ‘legal advice’” which caused him
to unintelligently waive his right to testify regarding an
alibi, (5) failed to impeach prosecution witnesses, and (6)
failed to learn from police that witnesses gave differing
statements regarding the crime, failed to interview those
witnesses and failed to present that evidence to the court.
People v. Zimmerman, No. 225984, 2002 WL 483428, at
*2 (Mich.Ct.App. March 29, 2009). Notably, the list did not
specifically mention counsel’s alleged failure to seek
withdrawal of Petitioner’s jury waiver, although Petitioner
raised the issue as “incorrect legal advice.” (See R. 19,
Pet'r Supplemental Br., at PID # 842 (“Incorrect legal
advice by the attorney that causes the defendant to waive
a legal right (here, the right to jury trial) is ineffective
essistence [sic] of counsel.”)).
The Michigan Court of Appeals explained that Petitioner failed to move
for a new trial or properly seek an evidentiary hearing, thus limiting the
court’s review to a trial record devoid of any evidence that “his attorney
3

failed to meet with him prior to trial, gave him erroneous legal advice,
and failed to adequately investigate the case before trial.” Zimmerman,
2002 WL 483428, at * 3. Consequently, the state court denied relief for
these claims for lack of evidence and determined that the record clearly
controverted Petitioner’s remaining ineffective-assistance-of-counsel
claims.
In May 2002, Petitioner filed an application for leave to appeal to the
Michigan Supreme Court, raising all of the claims presented to the
Court of Appeals and a new claim asserting that appellate counsel
provided ineffective assistance when counsel failed to assist with his
pro
per
brief
and
failed
to
raise
the
ineffective-assistance-of-trial-counsel claim on his behalf. Petitioner
sought either reversal of the lower appellate court or remand to the trial
court for an evidentiary hearing on the ineffective-assistance-of-counsel
claims. The Michigan Supreme Court denied his application and
denied the motion to remand. People v. Zimmerman, 467 Mich. 895,
654 N.W.2d 327 (2002)(Table).
Post–Conviction
In January 2005, Petitioner filed a subsequent motion for relief from
judgment before the trial court pursuant to Michigan Court Rule 6.508,
and again requested an evidentiary hearing to develop his
ineffective-assistance-of-counsel claims, but that motion was also
denied. The trial court concluded that Petitioner’s
ineffective-assistance-of-counsel claims against trial counsel, including
the jury-trial-waiver claim, were barred because they had already been
adjudicated on the merits by the Michigan Court of Appeals, and that
his claims against appellate counsel lacked merit. Both the Michigan
Court of Appeals and the Michigan Supreme Court denied relief on
appeal. See People v. Zimmerman, 477 Mich. 978, 725 N.W.2d 339
(2006); (R. 19, Ex. 18, Mich. Ct. App. Order, PID # 1060).
In August 2003, Petitioner filed a petition for a writ of habeas corpus in
federal court, which was held in abeyance by the district court until
Petitioner exhausted his available state court remedies. In April 2007,
after the denial of his motion for relief from judgment, Petitioner filed an
amended habeas petition with claims against both his trial and
appellate counsel. Petitioner asserted an ineffective assistance claim
against his trial counsel for failing to visit him prior to trial and in
4

connection with the jury-trial-waiver claim, and against his appellate
counsel for failing to raise the trial counsel claim on direct appeal on
Petitioner’s behalf or assist him with his pro per supplemental brief. He
also moved for an evidentiary hearing.
The case was referred to a magistrate judge, who recommended
granting Petitioner an evidentiary hearing. The magistrate judge
determined that the ineffective-assistance-of-trial-counsel claim was
rejected on the merits by the Michigan Court of Appeals, and thus, was
not procedurally barred. And though an evidentiary hearing may not
have been warranted on the ineffective assistance claim against trial
counsel standing alone because of Petitioner’s failure to diligently
pursue the claim in state court, the claim was inextricably intertwined
with the ineffective assistance claim against appellate counsel, which
merited an evidentiary hearing. The magistrate judge noted that there
was no evidence in the existing record to support either claim, so that
if the district court were to deny an evidentiary hearing, the petition
should also be denied.
No objections to the magistrate judge’s report and recommendation
concerning the evidentiary hearing were filed, and the district court
adopted the report and recommendation in its entirety. An evidentiary
hearing was held thereafter before the magistrate judge, who
recommended denying habeas relief on all claims. The magistrate
judge determined that the jury-trial-waiver claim failed, in part because
Petitioner had not established that trial counsel provided constitutionally
deficient assistance under the first prong of the Strickland inquiry.
Specifically, the magistrate judge determined that there was insufficient
evidence to prove that Petitioner actually instructed counsel to seek
withdrawal of the jury trial waiver. The testimony of Van Ash,
Petitioner’s attorney for an unrelated matter, established only that
Petitioner was having second thoughts about waiving the jury trial, and
her letter to trial counsel asserted the same; she did not testify, nor did
her letter indicate, that Petitioner definitively asserted his desire to
withdraw the jury trial waiver. Moreover, the magistrate judge found
that Petitioner was not credible in his testimony in which he claimed
that he asked trial counsel to withdraw the jury trial waiver.
In March 2011, over Petitioner’s objections to the magistrate judge’s
findings on the ineffective-assistance-of-trial-counsel claim, the district
court expressly affirmed the magistrate judge’s credibility determination
5

and adopted the report and recommendation in its entirety to deny the
habeas petition. However, the district court granted a certificate of
appealability with respect to the jury-trial-waiver claim only.
Zimmerman v. Booker, 517 F. App’x 333, 334-36 (6th Cir. 2013)(internal footnotes
omitted).
The Sixth Circuit affirmed this Court’s denial of the petition for writ of
habeas corpus, finding that the Michigan Court of Appeals reasonably rejected
petitioner’s ineffective assistance of counsel claim, because petitioner failed to
develop the claim in the state courts and in the absence of any evidentiary
hearing in the state courts, there was nothing in the state court record to support
petitioner’s claim that petitioner’s trial counsel disregarded his instruction to
withdraw his jury trial waiver. Zimmerman v. Booker, 517 F. App’x at 338.
Significantly, for purposes of adjudicating petitioner’s Rule 60 motion, the Sixth
Circuit further ruled that in light of the Supreme Court’s decision in Cullen v.
Pinholster, 131 S. Ct. 1388, 1398-1401 (2011), any of the evidence submitted at
the evidentiary hearing before Magistrate Judge Paul J. Komives “would not have
been relevant” to the Sixth Circuit’s “analysis [of petitioner’s case] under the
AEDPA standard of review.” Id.
The United States Supreme Court denied petitioner a writ of certiorari.
Zimmerman v. Smith, 134 S. Ct. 620 (2013).
Petitioner has filed a motion for relief from judgment pursuant to fed. R.
Civ. P. 60(b). Petitioner contends that he has newly discovered evidence to show

6

that his trial counsel, David Cripps, committed perjury and a fraud on the court at
the evidentiary hearing before Magistrate Judge Komives. Petitioner specifically
alleges that Mr. Cripps falsely testified that he met with petitioner on four
occasions prior to trial, when in fact, he had only met with petitioner once prior to
trial. Petitioner claims that Mr. Cripps’ fraudulent testimony caused this Court to
rely on erroneous or false information in rejecting his ineffective assistance of
counsel claim. Petitioner requests an evidentiary hearing and any other relief.
II. Discussion
Petitioner seeks to reopen his case and vacate the original judgment. The
Court directs the Clerk of the Court to reopen the case to the Court’s active
docket for the purpose of facilitating the adjudication of petitioner’s Rule 60 (b)
motion. See Heximer v. Woods, No. 2:08-CV-14170, 2016 WL 183629, at * 1
(E.D. Mich. Jan. 15, 2016).
Petitioner claims that Mr. Cripps testified falsely at the evidentiary hearing
before Magistrate Judge Komives concerning the number of times that he met
with petitioner prior to trial. Petitioner claims that Mr. Cripps’ alleged perjury
constitutes a fraud on the Court.
A Rule 60(b) motion for relief from judgment which seeks to advance one
or more substantive claims following the denial of a habeas petition, such as a
motion seeking leave to present a claim that was omitted from the habeas petition
due to mistake or excusable neglect, or seeking to present newly discovered
7

evidence not presented in the petition, or seeking relief from judgment due to an
alleged change in the substantive law since the prior habeas petition was denied,
should be classified as a “second or successive habeas petition,” which requires
authorization from the Court of Appeals before filing, pursuant to the provisions of
§ 2244(b). See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). On the other
hand, when a habeas petitioner’s Rule 60(b) motion alleges a “defect in the
integrity of the federal habeas proceedings,” the motion should not be transferred
to the circuit court for consideration as a second or successive habeas petition.
Id., at 532. A claim of “[f]raud on the federal habeas court,” is an “example of
such a defect.” Id. at 532, n. 5.
Petitioner is not entitled to relief from judgment pursuant to Fed. R. Civ. P
60(b), because petitioner failed to show that a fraud has been committed upon
the court.
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 disclose; and,
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 for two reasons.
The first problem with petitioner’s “fraud on the court” argument is that
8

other than his conclusory assertions, petitioner has presented no evidence to this
Court that Mr. Cripps deliberately testified falsely concerning the number of times
that he met with petitioner, so as to entitle petitioner to relief from judgment
pursuant to Rule 60(b)(3) based upon a fraud committed upon this Court. See
Alley v. Bell, 392 F. 2d 822, 831 (6th Cir. 2004). The evidentiary hearing was
conducted on May 19, 2010, over ten years after petitioner’s trial. Magistrate
Judge Komives, in his report and recommendation, noted that Mr. Cripps testified
that: “He did not have any records remaining in his possession regarding his
representation of petitioner.” Zimmerman v. Davis, No. 5:03-CV-60173, 2011 WL
1233311, at *7 (E.D. Mich. Feb. 17, 2011)(Komives, MJ)(report and
recommendation adopted, No. 03-60173, 2011 WL 1233357 (E.D. Mich. Mar. 30,
2011). It is quite possible, given the passage of time, that Mr. Cripps’ testimony
may have simply been mistaken, as opposed to false.
More importantly, petitioner is unable to show that Mr. Cripps’ testimony at
the evidentiary hearing before Magistrate Judge Komives was material to the
ultimate disposition of his case, in light of the fact that the Sixth Circuit ruled that it
could not consider any testimony from the evidentiary hearing in determining
whether the Michigan Court of Appeals’ rejection of petitioner’s ineffective
assistance of counsel claim was unreasonable, because none of this evidence
had been presented to the state courts. Zimmerman, 517 F. App’x at 338. Even if
Mr. Cripps testified falsely at the evidentiary hearing concerning the number of
9

times he visited petitioner prior to trial, petitioner would not be entitled to relief
under 60(b) because Mr. Cripps’ testimony at the evidentiary hearing was
immaterial to the Sixth Circuit’s conclusion that the Michigan Court of Appeals
had reasonably rejected petitioner’s ineffective assistance of counsel claim based
on the evidence before that court. See Taylor v. Streicher, 469 F. App'x 467, 468
(6th Cir. 2012). Accordingly, petitioner is not entitled to relief from judgment
based upon a fraud on the court.
To the extent that petitioner has new evidence in support of his ineffective
assistance of counsel claims that was not previously available, he must
nonetheless obtain permission from the Sixth Circuit before he can obtain habeas
relief on the basis of this new evidence.
Before a second or successive habeas petition is filed in a federal district
court, a habeas petitioner shall move in the appropriate court of appeals for an
order authorizing the district court to consider the petition. 28 U.S.C. §
2244(b)(3)(A); Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). Under the
provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), a
federal district court does not have jurisdiction to entertain a successive postconviction motion or petition for writ of habeas corpus in the absence of an order
from the court of appeals authorizing the filing of such a successive motion or
petition. Ferrazza v. Tessmer, 36 F. Supp. 2d 965, 971 (E.D. Mich. 1999).
Unless the Sixth Circuit Court of Appeals has given its approval for the filing of a
10

second or successive petition, a district court in the Sixth Circuit must transfer the
petition or motion to the Sixth Circuit Court of Appeals no matter how meritorious
the district court believes the claim to be. Id. at 971; See also In Re Sims, 111 F.
3d 45, 47 (6th Cir. 1997). This requirement transfers to the court of appeals a
screening function which the district court previously would have performed.
Felker v. Turpin, 518 U.S. 651, 664 (1996).
Petitioner's motion for relief from judgment amounts to a second or
successive habeas petition, because the motion seeks to advance claims that the
Court previously considered and dismissed on substantive, constitutional
grounds. See Post v. Bradshaw, 422 F. 3d 419, 424-25 (6th Cir. 2005).
Petitioner’s Rule 60(b) motion is not simply an attempt to rectify a defect in the
habeas corpus proceedings, but instead reasserts the substance of petitioner’s
ineffective assistance of counsel claims and would constitute an impermissible
attack on the Court’s previous resolution of the claims on the merits. See
Henderson v. Collins, 184 Fed. App’x. 518, 523 (6th Cir. 2006). Moreover, a Rule
60(b) motion which seeks to introduce new evidence in support of habeas claims
which had previously been denied qualifies as a second or successive habeas
petition. See In Re Bowling, 422 F. 3d 434, 439-40 (6th Cir. 2005)(district court
properly construed habeas petitioner’s Rule 60(b) motion, which sought to
introduce new evidence in support of his previously adjudicated ineffective
assistance of counsel claim, as a second or successive habeas petition).
11

Petitioner is seeking to introduce new evidence to vindicate his previous
ineffective assistance of counsel claims. Petitioner’s current Rule 60(b) motion is
a second or successive petition for a writ of habeas corpus and he is therefore
required to obtain a certificate of authorization.
Petitioner previously filed a habeas petition with the federal courts.
Although petitioner would not have been required to obtain a certificate of
authorization following the dismissal of his petition if it had been dismissed
without prejudice on exhaustion grounds, See Harris v. Stovall, 22 F. Supp. 2d
659, 664 (E.D. Mich. 1998), this Court dismissed petitioner’s first habeas
application on the merits. Petitioner’s current motion is a successive petition for a
writ of habeas corpus and he is thus required to obtain a certificate of
authorization.
Accordingly, the Clerk of Court is ordered to transfer the motion for relief
from judgment to the United States Court of Appeals for the Sixth Circuit pursuant
to Sims and 28 U.S.C. § 1631. See Galka v. Caruso, 599 F. Supp. 2d 854, 857
(E.D. Mich. 2009). Although neither party raised the issue of this being a second
or successive petition, it is appropriate for this Court to consider the issue sua
sponte because subject matter jurisdiction goes to the power of the courts to
render decisions under Article III of the Constitution. See Williams v. Stegall, 945
F. Supp. 145, 146 (E.D. Mich. 1996).

12

III. ORDER
The Court ORDERS that:
(1) The Clerk of the Court reopen the case to the Court’s Active Docket.
(2) The motion for relief from judgment [Dkt. # 68] is DENIED IN PART.
(3) The Clerk of the Court is ORDERED to transfer the motion for relief
from judgment [Dkt. # 68] and the related motion to proceed without
prepayment of fees and costs on appeal [Dkt. # 69] to the United States
Court of Appeals for the Sixth Circuit for authorization to file a
subsequent petition as required by 28 U.S.C. § 2244(b)(3)(A) pursuant
to 28 U.S.C. § 1631.
Date: May 11, 2016

s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective
email addresses or First Class U.S. mail to the non-ECF participants on May 11, 2016.
s/ Kay Doaks
Case Manager

13