Banks v. Michigan Department of Corrections

Filing 40

ORDER denying 38 Petitioner's Motion for Relief from Judgment and Denying Certificate of Appealability. Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONALD BANKS,
Petitioner,

Case Number: 07-12821
HONORABLE AVERN COHN

v.
NICK J. LUDWICK,
Respondent.
______________________________/

ORDER DENYING PETITIONER’S MOTION FOR RELIEF FROM JUDGMENT
(Doc. 38)
AND DENYING A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254 which has been closed. In 2007,
Petitioner filed a habeas petition challenging his 1981 armed robbery and firearms
convictions, claiming he was denied his right to speedy trial under both the Sixth
Amendment and the Interstate Agreement on Detainers, and that his sentence was
improper. In 2008, the Court dismissed the petition as untimely.
Before the Court is Petitioner’s motion for relief from judgement under Fed. R. Civ.
P. 60(b). As will be explained, this is Petitioner’s fourth motion filed under Rule 60(b).
Like the previous three motions, this motion will also be denied. A certificate of
appealability will also be denied.
II. Background
Upon the filing of the petition, the case was referred to a magistrate judge for all
proceedings. Respondent filed a motion to dismiss on the grounds that the petition is
barred by the one year statute of limitations. Petitioner filed a motion for summary
judgment. The magistrate judge issued a report and recommendation (MJRR),

recommending that Respondent’s motion be granted because the petition was not timely
filed and that Petitioner’s motion be denied as moot. Petitioner objected. The Court
adopted the MJRR, granted Respondent’s motion and dismissed the case. See Order
filed June 11, 2008, Doc. 17. The Court denied a certificate of appealability (COA). See
Order filed July 7, 2008, Doc. 23. The Court of Appeals for the Sixth Circuit also denied a
COA. See Doc. 24.
On January 7, 2011, Petitioner filed his first motion for relief from judgment under
Rule 60(b) in which he argued that the Court improperly dismissed the petition as untimely.
Doc. 25. The Court denied the motion for lack of merit. See Order filed January 24, 2011,
Doc. 26. Petitioner filed a notice of appeal. Doc. 27.
On February 22, 2011, Petitioner filed a second motion for relief from judgment.
Doc. 29. The motion appeared to be the same motion filed in January except that the
motion contained attachments, including a copy of the Court’s order denying the original
motion. The Court denied the motion. See Order filed March 2, 2011. Doc. 31. On July
1, 2011, the Court denied a certificate of appealability. See Doc. 32.
On August 3, 2011, Petitioner filed his third 60(b) motion, again presenting the
same arguments raised in his prior two Rule 60(b) motions. Doc. 34. On August 9, 2011,
the Court denied the motion and a certificate of appealability. Doc. 35.
Meanwhile, on August 31, 2011, the Sixth Circuit denied Petitioner a certificate of
appealability as to his first motion for relief from judgment (Doc. 25), finding that Petitioner
failed to show that reasonable jurists would debate whether the petition was timely filed.
Doc. 37.
Undeterred, on November 4, 2011, Petitioner filed what is his fourth motion under
Rule 60(b), again contending that the Court erred when it dismissed his habeas petition as

2

untimely. Doc. 38. Petitioner’s motion is DENIED for the reasons in the Court’s orders of
January 24, 2011, March 2, 2011, and August 9, 2011, as well as for the reasons
explained by the Sixth Circuit in its August 31, 2011 order.
Before Petitioner can appeal the Court’s decision, a certificate of appealability
(COA) must issue. See United States v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007) (stating
that “this prerequisite [a COA] is consistent with the language of section 2253, and
therefore hold that [a Petitioner] must obtain a certificate of appealability before his appeal
of the denial of his Rule 60(b)). Reasonable jurist would not debate whether Petitioner’s
60(b) motion deserves to proceed further. Accordingly, a COA is DENIED. See 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000).
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: November 22, 2011
I hereby certify that a copy of the foregoing document was mailed to Ronald Banks,
225311, Pugsley Correctional Facility, 7401 East Walton Road, Kingsley, MI 49649 and
the attorneys of record on this date, November 22, 2011, by electronic and/or ordinary
mail.
S/Julie Owens
Case Manager, [phone]

3