Carroll v. Burt et al
OPINION and ORDER denying the 22 Rule 60(b) Motion for Relief from Judgment and 23 Motion to Waive Fees. Signed by District Judge Denise Page Hood. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil No. 2:07-12679
HONORABLE DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE RULE 60(B) MOTION FOR RELIEF
FROM JUDGMENT AND THE MOTION TO WAIVE FEES
On June 30, 2010, this Court dismissed petitioner’s application for a writ of
habeas corpus on the ground that the petition was filed outside of the one year
statute of limitations for habeas petitions contained in 28 U.S.C. § 2244(d)(1).
The Court granted petitioner a certificate of appealability on the issue of whether
petitioner had made a significant showing of actual innocence to excuse the
untimely filing of his habeas petition. See Carroll v. Burt, No. 2:07-CV-12679;
2010 WL 2649895 (E.D. Mich. June 30, 2010). The United States Court of
Appeals for the Sixth Circuit subsequently affirmed the Court’s dismissal of the
habeas petition, finding that petitioner had made an insufficient showing of actual
innocence so as to toll the limitations period. Carroll v. Burt, 443 Fed. Appx. 991
(6th Cir. 2011). Petitioner has now filed a Rule 60(b) motion for relief from
judgment and a motion to waive fees. For the reasons stated below, the motions
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
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). A Rule 60(b)
motion can be considered as raising “a ‘claim’ if it attacks the federal court’s
previous resolution of a claim on the merits, since alleging that the court erred in
denying habeas relief on the merits is effectively indistinguishable from alleging
that the movant is, under the substantive provisions of the statutes, entitled to
habeas relief.” Id., at 532. A habeas court’s determination on the merits refers “to
a determination that there exist or do not exist grounds entitling a petitioner to
habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d).” Id., at 532, n. 4.
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. Gonzalez, 545 U.S. at 532. A Rule 60(b) motion is not
considered to be raising a claim on the merits when the motion “merely asserts
that a previous ruling which precluded a merits determination was in error-for
example, a denial for such reasons as failure to exhaust, procedural default, or
statute-of-limitations bar.” Id., at 532, n. 4.
Petitioner claims in his motion for relief from judgment that this Court erred
in failing to address the merits of his claim involving an alleged violation of Article
IV (c) of the Interstate Detainers Act (IAD), because this violation deprived the
State of Michigan of subject matter jurisdiction over his criminal case. Petitioner
suggests that because the violation of the IAD deprived the State of Michigan of
jurisdiction over his case, the one year limitations period contained in 28 U.S.C.§
2244(d)(1) did not bar consideration of this claim .
Petitioner's motion, which argues that this Court misapplied the federal
statute of limitations set out in § 2244(d), constitutes a “true” 60(b) claim that
attacks the integrity of the habeas proceedings and would not be considered a
successive habeas petition. See Gonzalez, 545 U.S. at 533. However, a motion
for relief from judgment that attacks the integrity of a previous habeas
proceeding, but is nevertheless without merit, should simply be denied, as would
any other motion for relief from judgment that lacks merit. See Harris v. U.S., 367
F.3d 74, 82 (2nd Cir. 2004).
Petitioner claims that the State of Michigan lost jurisdiction to prosecute
him when they violated Article IV of the IAD. The mere fact that there may be a
jurisdictional defect in petitioner’s conviction would not mean that the limitations
period contained in § 2244(d) is inapplicable to his conviction. See Frazier v.
Moore, 252 Fed. Appx. 1, 4-5 (6th Cir. 2007); See also Barreto-Barreto v. U.S.,
551 F. 3d 95, 100 (1st Cir. 2008)(jurisdictional challenge was not exempt from
one-year limitations period for filing motion to vacate sentence pursuant to 28
U.S.C.A. § 2255); U.S. v. Hicks, No. 2009 WL 1620430, * 1 (E.D. Mich. June 9,
2009)(same); Banks v. Ludwick, No. 2008 WL 2397627, * 5 (E.D. Mich. June 11,
2008)(“there is no authority for the proposition that claims attacking the
jurisdiction of the trial court are exempt from the limitations provision of §
This Court will deny petitioner’s Rule 60(b) motion, because petitioner has
failed to show that this Court erred in dismissing his IAD claim as barred by the
one year statute of limitations.
The Court will also deny petitioner a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A) and F.R.A.P. 22(b) state that an appeal from the district court’s
denial of a writ of habeas corpus may not be taken unless a certificate of
appealability (COA) is issued either by a circuit court or district court judge. If an
appeal is taken by an applicant for a writ of habeas corpus, the district court judge
shall either issue a certificate of appealability or state the reasons why a
certificate of appealability shall not issue. F.R.A.P. 22(b). To obtain a certificate
of appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). A habeas petitioner is required to
obtain a certificate of appealability before he can appeal the denial of a 60(b)
motion for relief from judgment which seeks to challenge the judgment in a
habeas case. See United States v. Hardin, 481 F. 3d 924, 926 (6th Cir. 2007).
When a district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claims, a certificate of
appealability should issue, and an appeal of the district court’s order may be
taken, if the petitioner shows 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 district court was correct in
its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a plain
procedural bar is present and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that the district court erred
in dismissing the petition or that the petition should be allowed to proceed further.
In such a circumstance, no appeal would be warranted. Id.
In habeas cases involving a district court’s denial of a 60(b) motion for relief
from judgment on procedural grounds without reaching the merits of any
constitutional claims, a petitioner should be granted a certificate of appealability
only if he makes both a substantial showing that he had a valid claim of the denial
of a constitutional right, and a substantial showing that the procedural ruling by
the district court is wrong. See Hardin, 481 F. 3d at 926, n. 1.
Petitioner is not entitled to a certificate of appealability from the denial of
his motion for relief from judgment, because he has failed to make a substantial
showing of the denial of a constitutional right or that this Court’s procedural ruling
Because the Court can discern no good faith basis for an appeal, any
appeal would be frivolous. The Court will therefore deny a certificate of
appealability. See Long v. Stovall, 450 F. Supp. 2d 746, 755 (E.D. Mich. 2006).
The Court will also deny the petitioner leave to appeal in forma pauperis, because
the appeal would be frivolous. Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D.
Mich. 1999). Thus, the Court will deny petitioner’s motion to waive fees.
Accordingly, the Court DENIES the Rule 60(b) motion for relief from
judgment [Dkt. Entry # 22].
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the motion to waive fees [Dkt. Entry # 23]
is DENIED. Petitioner will be denied leave to appeal in forma pauperis.
Dated: February 5, 2013
S/Denise Page Hood
Denise Page Hood
United States District Judge
I hereby certify that a copy of the foregoing document was served upon counsel
of record on February 5, 2013, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
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