Blackmon v. Booker

Filing 60

ORDER denying 59 Rule 60(d) Motion. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROY BLACKMON,
Petitioner,
CIVIL ACTION NO. 03-CV-71206-DT
HONORABLE ARTHUR J. TARNOW

v.
RAYMOND BOOKER,
Respondent.
__________________________________/

ORDER DENYING RULE 60(d) MOTION
Petitioner has filed a pro se motion for relief from judgment pursuant to Federal Rule
of Civil Procedure 60(d) concerning his federal habeas proceedings. On December 22, 2010,
this Court conditionally granted his amended petition for a writ of habeas corpus on claims
concerning the improper admission of gang evidence and related prosecutorial misconduct.
The United States Court of Appeals for the Sixth Circuit, however, reversed that decision and
remanded the case for entry of an order denying the petition. Blackmon v. Booker, 696 F.3d
536 (6th Cir. 2012). On November 19, 2012, this Court entered the requisite order denying
the petition. The United States Supreme Court subsequently denied certiorari. Blackmon v.
Booker, _U.S. _, 133 S. Ct. 1501 (March 4, 2013).
In his motion, Petitioner asserts that the State committed a fraud upon this Court by
stating: “In opening statements, the Prosecutor stated that witnesses would testify that
Petitioner was a member of the Schoolcraft Boys gang, which was a rival to the people living
on Woodmont where the shooting occurred.” Motion, p. 2. Although not entirely clear from
the motion, Petitioner seems to be challenging the prosecutor’s gang affiliation references
at trial and/or the State’s briefs referencing such matters on habeas review. Petitioner claims

that this Court relied upon such “fraud,” without conducting an evidentiary hearing, which
caused the Sixth Circuit to reverse the Court’s grant of habeas relief.
Federal Rule of Civil Procedure 60(d) provides:
Other Powers to Grant Relief. This rule does not limit a court’s power to:
(1) entertain an independent action to relieve a party from a judgment, order,
or proceeding;
(2) grant relief under 28 U.S.C. § 1655 to a defendant who was not personally
notified of the action; or
(3) set aside a judgment for fraud on the court.
Fed. R. Civ. P. 60(d). An independent action under Rule 60(d) is an equitable action, which
has no time limitation. Mitchell v. Rees, 651 F.3d 593, 594-95 (6th Cir. 2011). Its elements
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 benefit of his defense; (4) the absence of fault or
negligence on the part of the defendant; and (5) the absence of any adequate
remedy at law.
Id. at 595 (citing Barrett v. Secretary of Health & Human Svs., 840 F.2d 1259, 1263 (6th Cir.
1987)). An independent action under Rule 60(d) is available to prevent “a grave miscarriage
of justice.” Id. (quoting United States v. Beggerly, 524 U.S. 38, 47 (1998), and citing cases).
This is a “‘stringent’ and ‘demanding’ standard,” and, because Petitioner seeks relief from
judgment in a habeas case, he must make a strong showing of actual innocence to establish
that relief is required. Id. at 595-96 (citing Calderon v. Thompson, 523 U.S. 538, 557-58
(1998), and Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
As an initial matter, the Court questions whether Petitioner’s motion is properly before
this Court given that the Court granted him habeas relief on his claims and the Sixth Circuit
2

reversed that decision. Petitioner fails to show that he is entitled to relief from judgment
under Rule 60(d). Rather, he merely re-argues issues previously addressed by the Court
and/or raises issues which could have been presented in his initial habeas proceeding. His
allegations do not warrant the extraordinary remedy he seeks in this action. Petitioner has
not shown that the Court erred, that he is actually innocent, or that he is otherwise entitled
to relief under Rule 60(d). Accordingly, the Court DENIES Petitioner’s motion.
Before Petitioner may appeal, a certificate of appealability must issue. 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. Slack v. McDaniel, 529
U.S. 473, 484-85 (2000). When a court denies relief on procedural grounds, 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 court was correct in its procedural ruling. Id.
With Slack v. McDaniel in mind, judges within this district have adopted the following
standard for determining whether a certificate of appealability should issue in the context of
the denial of a Rule 60 motion:
A COA should issue only if the petitioner shows that (1) jurists of reason
would find it debatable whether the district court abused its discretion in
denying the Rule 60(b) motion, and (2) jurists of reason would find it
debatable whether the underlying habeas petition, in light of the grounds
alleged to support the 60(b) motion, states a valid claim of the denial of a
constitutional right.
Missouri v. Birkett, No. 2:08-CV-11660, 2012 WL 882727, *2-3 (E.D. Mich. March 15,
2012); Carr v. Warren, No. 05-CV-73763, 2010 WL 2868421, *2 (E.D. Mich. July 21, 2010)
3

(both citing Kellogg v. Strack, 269 F.3d 100, 104 (2d Cir. 2001)). Having considered the
matter, the Court concludes that Petitioner has failed to demonstrate that jurists of reason
would find it debatable that the Court abused its discretion in denying his motion.
Accordingly, the Court DENIES a certificate of appealability. This case remains closed.
IT IS SO ORDERED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: May 21, 2014
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on May 21, 2014, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

4