Lewis v. Vasbinder
Filing
75
OPINION AND ORDER Denying 73 Motion for leave to reopen judgment. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARTIN A. LEWIS,
Petitioner,
v.
Case No. 2:04-cv-71140
Honorable Sean F. Cox
DOUG VASBINDER,
Respondent.
___________________________/
OPINION AND ORDER DENYING PETITIONER’S
MOTION FOR LEAVE TO RE-OPEN THE JUDGMENT
This is a closed habeas corpus case. Before the Court is Petitioner Martin A.
Lewis’s motion for leave to re-open the judgment pursuant to Federal Rule of Civil
Procedure 60(b)(4) and Rule 60(b)(6). For the reasons given below, the motion is denied.
I. Background
Following a bench trial in the year 2000, Petitioner was found guilty of first-degree
murder, Mich. Comp. Laws § 750.316, and sentenced to mandatory life imprisonment
without the possibility of parole. The conviction was based on evidence that Petitioner
beat the victim to death with a baseball bat. The Michigan Court of Appeals affirmed
Petitioner’s conviction, see People v. Lewis, No. 230887, 2002 WL 31957700, at *1 (Mich.
Ct. App. Dec. 27, 2002) (per curiam), and on November 24, 2003, the Michigan Supreme
Court denied leave to appeal. See People v. Lewis, 671 N.W.2d 880 (Mich. 2003) (table).
Petitioner commenced this action in 2004.
The State moved for summary
judgment and dismissal of the habeas petition on the basis that Petitioner had not
exhausted state remedies for his claims that his trial attorney (1) failed to obtain an expert
witness on eyewitness identification and (2) forfeited his right to impeach two witnesses
with their prior convictions by not complying with the trial court’s motion schedule.
(Docket No. 11). In a response to the State’s motion for summary judgment and dismissal
of the habeas petition, Petitioner maintained that he had exhausted state remedies. But
he stated that, if the Court agreed with the State’s argument, he was willing to delete the
unexhausted claims and proceed with his exhausted claims. (Docket No. 30).
Former United States District Judge Lawrence P. Zatkoff was assigned to the case
at the time, and he agreed with the State that Petitioner did not exhaust state remedies
for his claims about trial counsel’s failure to obtain an expert witness and failure to
impeach two prosecution witnesses with their prior convictions.
(Docket No. 33).
However, because Petitioner had agreed to delete those claims, Judge Zatkoff
subsequently adjudicated Petitioner’s exhausted claims and denied the petition on the
merits. (Docket No. 41). Petitioner appealed Judge Zatkoff’s decision, but the United
States Court of Appeals for the Sixth Circuit declined to issue a certificate of appealability.
See Lewis v. Vasbinder, No. 07-2265 (6th Cir. June 6, 2008); Docket No. 51 in this case.
In 2009, Petitioner filed a motion for relief from Judge Zatkoff’s judgment in this
case. Petitioner claimed that state officials had committed a fraud on the courts by
misleading the courts into believing that probable cause existed for Petitioner’s arrest.
(Docket No. 52). Judge Zatkoff treated the motion as a second or successive habeas
petition and then transferred the case to the Sixth Circuit Court of Appeals for a
determination on whether Petitioner could proceed with a second or successive petition.
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(Docket No. 53).1
The Sixth Circuit denied Petitioner’s request to file a second or
successive petition. See In re Lewis, No. 09-1670 (6th Cir. Nov. 24, 2009). Petitioner
filed two additional motions for authorization to file a second or successive habeas
petition, but the Sixth Circuit denied both motions. See In re Lewis, No. 11-1658 (6th Cir.
Sept. 12, 2011); Docket No. 54 in this case; In re Lewis, No. 12-2446 (6th Cir. May16,
2013); Docket No. 55 in this case.
In 2014, Petitioner filed a motion for relief from judgment in the state trial court. He
raised the two ineffective-assistance-of-counsel claims that Judge Zatkoff had
determined were unexhausted. The trial court denied the motion for relief from judgment.
See People v. Lewis, No. 2000-0171-FC (Kalamazoo Cty. Cir. Ct. Mar. 30, 2015).
Petitioner appealed the trial court’s decision without success. The Michigan Court of
Appeals denied leave to appeal for failure to establish entitlement to relief under Michigan
Court Rule 6.508(D), see People v. Lewis, No. 328472 (Mich. Ct. App. Sept. 29, 2015),
and on July 26, 2016, the Michigan Supreme Court likewise denied leave to appeal under
Rule 6.508(D). See People v. Lewis, No. 152662 (Mich. Sup. Ct. July 26, 2016).
In 2017, Petitioner filed a habeas corpus petition in which he asserted that he had
exhausted state remedies for his previously unexhausted claims about trial counsel. He
asserted that the claims were ripe for review and that he had new reliable evidence from
an expert witness who could discredit the eyewitnesses’ trial testimony. The 2017 case
Under 28 U.S.C. § 2244(b), a habeas petitioner who seeks to file a second or successive
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petition must first seek and obtain authorization from the appropriate court of appeals
before filing a second or successive petition in the district court. 28 U.S.C. §
2244(b)(3)(A).
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was assigned to United States District Judge Paul D. Borman, who transferred the petition
to the Sixth Circuit as a second or successive petition. See Lewis v. Haas, No. 2:17-cv10734 (E.D. Mich. Mar. 9, 2017). The Sixth Circuit denied permission for leave to file a
second or successive petition. See In re Lewis, No. 17-1253 (6th Cir. July 19, 2017).
In 2018, Petitioner moved to re-open this case (Docket No. 58) and to amend his
habeas petition (Docket No. 57). Petitioner reiterated his claims about trial counsel’s
failure to obtain a defense expert and impeach two prosecution witnesses with their
criminal histories. Petitioner argued that Judge Zatkoff had erred when he determined
that Petitioner did not exhaust state remedies for these claims.
The case was reassigned to this Court following Judge Zatkoff’s retirement, and
on January 14, 2019, the Court denied the motions to re-open this case and to amend
the petition. (Docket No. 61.) Petitioner requested a rehearing (Docket No. 62), but the
Court denied the request (Docket No. 63). Although Petitioner appealed the Court’s
denial of his request for a rehearing, the Sixth Circuit Court of Appeals denied Petitioner’s
application for a certificate of appealability because no reasonable jurist could conclude
that this Court had abused its discretion in denying Petitioner’s Rule 60(b) motion. See
Lewis v. Winn, No. 20-1094 (6th Cir. June 2, 2020); Docket No. 72 in this case. On
August 27, 2020, Petitioner filed his most recent motion to re-open Judge Zatkoff’s
judgment. (Docket No. 73).
II. Discussion
Although portions of Petitioner’s typewritten motion are too faint to read, he seems
to be raising the same issues that he presented to the Court in his previous motion to re-
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open this case. He claims that Judge Zatkoff erred by not addressing the merits of his
claims about trial counsel’s failure to impeach two prosecution witnesses with their prior
convictions and failure to take adequate steps to obtain an expert witness.
The Court
understands Petitioner to be alleging that, at least one of his claims about trial counsel
was exhausted when his appellate attorney raised the claim in a motion to remand his
case to the trial court.
Petitioner also alleges that his willingness to delete the claims on habeas review
was a conditional statement and that Judge Zatkoff erred by mischaracterizing
Petitioner’s conditional statement as a motion to withdraw the unexhausted claims.
Finally, Petitioner asserts that Judge Zatkoff should have given him an opportunity to be
heard before recharacterizing his conditional statement as a motion to withdraw or to
delete the unexhausted claims.
Petitioner filed his motion under Federal Rule of Civil Procedure 60(b)(4) and
60(b)(6).
Those rules authorize federal courts to relieve a party from a final judgment
“when the judgment is void,” Fed. R. Civ. P. 60(b)(4), and for “any other reason that
justifies relief,” Fed. R. Civ. P. 60(b)(6). But “Rule 60(b)(4) does not provide a license for
litigants to sleep on their rights,” United Student Aid Funds, Inc. v. Espinosa, 559 U.S.
260, 275 (2010), and motions filed under both Rule 60(b)(4) and Rule 60(b)(6) “must be
made within a reasonable time.” Fed. R. Civ. P. 60(c)(1).
Petitioner filed his pending Rule 60(b) motion to re-open this case almost thirteen
years after Judge Zatkoff entered the judgment in this case. The motion was not filed
within a reasonable time. The motion fails for the following additional reasons.
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A. Rule 60(b)(4)
A void judgment under Rule 60(b)(4) “is one so affected by a fundamental infirmity
that the infirmity may be raised even after the judgment becomes final.” Espinosa, 559
U.S. at 270. “The list of such infirmities is exceedingly short[.]” Id. “ ‘A judgment is not
void,’ for example, ‘simply because it is or may have been erroneous.’ ” Id. (end citations
omitted). “Rule 60(b)(4) applies only in the rare instance where a judgment is premised
either on a certain type of jurisdictional error or on a violation of due process that deprives
a party of notice or the opportunity to be heard.” Id. at 271.
Judge Zatkoff had jurisdiction in this case, and even though Petitioner alleges a
violation of his right to due process, “[d]ue process requires notice ‘reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.’ ” Id. at 272 (quoting Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Petitioner had notice
and an opportunity to be heard on the exhaustion issue, and he took advantage of the
opportunity. After the State filed its motion for summary judgment and dismissal of the
habeas petition, Petitioner filed a response to the State’s motion and argument regarding
the exhaustion requirement. (Docket No. 30).
Furthermore, Judge Zatkoff did not mischaracterize Petitioner’s comment that, “if
this Court decides in favor of Respondent, for any reason that Petitioner did not foresee
(not being an attorney) that, Petitioner would delete the claims at issue and move forward
with the Writ.” (Docket No. 30, PageID.1968). This statement was an indication that
Petitioner was willing to waive or delete any unexhausted claims. Petitioner, in fact,
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concedes in one of his previous motions in this case that he deleted the unexhausted
claims. See Petitioner’s Brief in Support of Mot. for Leave to Amend Pet., Docket No. 57,
PageID.2201.
Even if Judge Zatkoff erred on the exhaustion issue, a judgment is not void merely
because it may have been erroneous. Espinosa, at 270. The Court, therefore, concludes
that Petitioner is not entitled to relief under Rule 60(b)(4). That leaves Rule 60(b)(6).
B. Rule 60(b)(6)
Rule 60(b)(6) is Rule 60’s “catchall category.” Buck v. Davis, 137 S. Ct. 759, 777
(2017). It “vests wide discretion in courts,” id., but the scope of the rule “is narrower than
it sounds: Rule 60(b)(6) permits relief only in ‘unusual and extreme situations where
principles of equity mandate relief. ’ ” Gillispie v. Warden, London Corr. Inst., 771 F.3d
323, 327 (6th Cir. 2014) (quoting Stokes v. Williams, 475 F.3d 732, 735 (6th Cir.2007))
(emphasis in original). “In determining whether extraordinary circumstances are present,
a court may consider a wide range of factors.” Buck, 137 S. Ct. at 778.
Petitioner challenges Judge Zatkoff’s conclusion that Petitioner did not exhaust
state remedies for his claim that defense counsel failed to adequately seek a defense
expert on eyewitness identification. The attorney apparently failed to inform the trial court
that the defense expert required more money than the amount authorized by the trial
court. The state trial court, however, determined during post-conviction proceedings that,
“even if the expert witness had been able to testify and discredit the eyewitness testimony,
. . . there was still plenty of other evidence to implicate the Defendant, including his
confessions to family and friends, his connection to the suspect vehicle, the fact that [he]
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was seen with a bat both before and immediately after the murder, and the fact that [he]
had injuries on his hands that were consistent with having been in a physical altercation.”
People v. Lewis, Op. and Order Denying Defendant’s Mot. for Relief from J., p. 6, No.
2000-0171-FC (Kalamazoo Cty. Cir. Ct. Mar. 30, 2015) (citations omitted); Docket No.
58, PageID.2247 in this case.
This Court agreed with the trial court’s reasoning in one of the Court’s previous
orders. The Court concluded that the outcome of the trial would not have been different
if the defense expert had testified and, therefore, Petitioner was not prejudiced by his trial
attorney’s failure to procure the expert witness. (Order Denying Rehearing, Docket No.
63., PageID.2292.) Because Petitioner’s underlying claim about trial counsel lacks merit,
Judge Zatkoff’s failure to address the issue on the merits does not mandate relief from
judgment.
The other issue that Judge Zatkoff did not address on the merits was Petitioner’s
claim that trial counsel was ineffective for failing to impeach two prosecution witness with
their criminal histories. This Court, however, concluded in its order denying rehearing
that even if defense counsel had impeached the witnesses with their prior convictions,
there was not a reasonable probability that the outcome of the trial would have been
different.
The basis for the Court’s ruling was that there was substantial evidence
implicating Petitioner in the murder, apart from the testimony of the two witnesses in
question. Id. at PageID.2292-2293.
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III. Conclusion and Order
Petitioner did not file his motion within a reasonable time, and he is not entitled to
relief under Rule 60(b)(4) because his arguments are not premised on a jurisdictional
error, and he has not demonstrated a violation of his right to due process. His motion
also fails under Rule 60(b)(6) because his underlying claims about trial counsel lack merit,
and there is no other reason that justifies relief from judgment. Accordingly, the Court
denies Petitioner’s motion for leave to re-open the judgment (Docket No. 73).
The Court also declines to issue a certificate of appealability because Petitioner
has not demonstrated that jurists of reason would disagree with the Court’s resolution of
his motion or that the issues presented deserve encouragement to proceed further.
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
IT IS SO ORDERED.
Dated: March 24, 2021
s/Sean F. Cox
Sean F. Cox
U. S. District Judge
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