Mitchell v. Sherry

Filing 44

OPINION AND ORDER denying 41 Motion For Relief from Order; denying 43 to Rehear Motion to Reopen. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMARIO A. MITCHELL,
Petitioner,
v.

Civil Case No. 04-73559
Honorable Patrick J. Duggan

JERI-ANN SHERRY,
Respondent,
________________________/
OPINION AND ORDER DENYING PETITIONER’S (1) MOTION FOR RELIEF
FROM OPINION AND ORDER DENYING HABEAS CORPUS PETITION
DATED FEBRUARY 9, 2006; AND (2) PETITIONER’S MOTION TO REHEAR
MOTION TO REOPEN HABEAS CORPUS PROCEEDING
On September 15, 2004, Petitioner Jamario A. Mitchell (“Petitioner”) filed a pro
se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his
convictions in the Circuit Court for Wayne County, Michigan in 2001. Petitioner raised
three grounds in support of his request for habeas relief: (I) his conviction was obtained
by use of insufficient evidence; (II) his convictions were against the great weight of the
evidence; and (III) his felony murder conviction must be reduced to second-degree
murder because the underlying felony, assault with intent to rob armed, is not one of the
enumerated felonies within the statute. In an opinion and order entered February 9, 2006,
this Court concluded that these grounds lacked merit and that Petitioner is not entitled to
habeas relief. On the same date, the Court entered a Judgment dismissing Petitioner’s
application for habeas relief with prejudice. Petitioner appealed that decision and the

Sixth Circuit Court of Appeals denied Petitioner a certificate of appealability on October
13, 2006.
More than six years later, on December 3, 2012, Petitioner filed a motion to reopen
his petition, which this Court denied in an opinion and order entered January 8, 2013. To
the extent Petitioner’s motion was filed pursuant to Federal Rule of Civil Procedure
60(b), the Court concluded that it was not timely filed. To the extent Petitioner was
seeking to assert a ground in support of his request for relief different than those raised in
his original petition, the Court indicated that it would be required to construe the pleading
as a second or successive petition and that he had to seek an order from the Sixth Circuit
authorizing this Court to consider the petition. 28 U.S.C. § 2244(b)(3)(A) (“Before a
second or successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.”). Shortly after the Court issued its decision,
Petitioner filed two additional motions: (1) a “motion for relief from opinion and order
denying habeas corpus petition dated February 9, 2006, seeking order to reopen habeas
petition under 28 U.S.C. § 2254(a)”, filed January 11, 2013; and (2) a “motion to rehear
motion to reopen habeas corpus proceeding”, filed January 22, 2013.
As with his earlier motion, in his pending motions Petitioner fails to clearly
articulate why he is entitled to relief from the Court’s decision denying his request for
habeas relief. Petitioner again cites to Rule 60(b) in support of the motion filed January
11, 2013. This Court plainly stated in its recent decision that such a motion is not timely.
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The Court is not authorized to adjudicate any new ground(s) Petitioner may be asserting
in support of his request for relief.
For these reasons,
IT IS ORDERED, that Petitioner’s motion (ECF No. 41) for relief from opinion
and order denying habeas relief is DENIED;
IT IS FURTHER ORDERED, that Petitioner’s motion (ECF No. 43) to rehear
motion to reopen habeas corpus proceeding is DENIED;
IT IS FURTHER ORDERED, that the Court declines to issue a certificate of
appealability with respect to these decisions.
Dated:February 20, 2013

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Jamario A. Mitchell, #386239
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036
AAG Debra M. Gagliardi

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