Mitchell v. Sherry

Filing 46

OPINION AND ORDER denying 45 MOTION to Vacate 29 Memorandum Opinion & Order. 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 MOTION TO VACATE
DISTRICT COURT’S ORDER ENTERED FEBRUARY 9, 2006
This is Petitioner’s fourth attempt to convince this Court to vacate its February 9,
2006 opinion and order denying his habeas corpus petition brought pursuant to 28 U.S.C.
§ 2254. Petitioner’s present motion, filed pursuant to Federal Rule of Civil Procedure
60(b) on March 11, 2013, is not timely for the same reasons provided by this Court when
denying his previous motions. (See ECF Nos. 40, 44.) Although not explicitly stated in
the Court’s previous decisions, Petitioner fails to demonstrate that he is entitled to relief
based on his claim of innocence. As the Supreme Court stated in Herrera v. Collins,
“[c]laims of actual innocence based on newly discovered evidence have never been held
to state a ground for federal habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding.” 506 U.S. 390, 400, 113 S. Ct.
853, 860 (1993). Moreover, Petitioner’s submission of his own affidavit to establish his
innocence would not be sufficient to prove his claim. See Schlup v. Delo, 513 U.S. 298,
324, 115 S. Ct. 851, 865 (1995) (explaining that, to be credible, claims of actual

innocence require the “petitioner to support his allegations of constitutional error with
new reliable evidence-whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence).
For these reasons,
IT IS ORDERED, that Petitioner’s motion to vacate (ECF No. 45) is DENIED;
IT IS FURTHER ORDERED, that the Court declines to issue a certificate of
appealability with respect to this decision.
Dated: April 19, 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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