Banks v. Michigan Department of Corrections
ORDER denying 62 Petitioner's Motion Motion for Relief from Judgment and Denying a Certificate of Appealability. Signed by District Judge Avern Cohn. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number: 07-12821
HONORABLE AVERN COHN
NICK J. LUDWICK,
DENYING PETITIONER’S MOTION FOR RELIEF FROM JUDGMENT (Doc. 62)
AND DENYING A CERTIFICATE OF APPEALABILITY
This is a habeas case under 28 U.S.C. § 2254 which has long since 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 one of several motions for relief from
judgment filed in this case. The motion will be denied. A certificate of appealability will
also be denied.
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. (Doc. 24).
III. Motions for Relief from Judgment
Almost three years after the denial of his petition, Petitioner began filing motions
for relief from judgment. 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. (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).
Then, on November 4, 2011, Petitioner filed a fourth motion under Rule 60(b),
again contending that the Court erred when it dismissed his habeas petition as untimely.
(Doc. 38). On November 22, 2011, the Court denied the motion. (Doc. 40). Petitioner
filed a notice of appeal. (Doc. 42). The appeal is pending.
Petitioner then filed three more motions for relief from judgment which were
essentially duplicative of all of the prior motions for relief from judgment. The motions
were filed on December 14, 2012, January 3, 2012, and January 20, 2012. See Docs.
51, 54, 60. The Court denied the motions as moot in orders filed December 22, 2012,
January 11, 2012, and January 26, 2012. See Docs. 53, 59, 61. Petitioner filed a
notice of appeal from the Court’s December 22, 2012 order. (Doc. 56). The appeal is
On March 9, 2012, Petitioner filed another motion for relief from judgment which
is before the Court.
In the current motion, unlike his prior motions for relief from judgment which
challenged the dismissal of his habeas petition for various reasons, Petitioner says that
the Court erred in its order of January 11, 2012 (Doc. 59), which denied his January 3,
2012 motion for relief from judgment (Doc. 54) as moot. As best as can be gleaned,
Petitioner says that the January 11, 2012 order was “not a written order” signed by the
undersigned. Petitioner is mistaken. The January 11, 2012 order, as well as all of the
orders entered in the case, are proper orders. There are no grounds for Rule 60(b)
relief. The motion is DENIED.
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).
Petitioner is also advised that because he currently has an appeal pending from
the Court’s November 22, 2011 denial of his fourth motion for relief from judgment and
an appeal pending from the Court’s December 22, 2012 order denying another motion
for relief from judgment as moot, there is no need for further motions to be filed in this
court. Relief, if any, lies with the Court of Appeals.
Dated: March 15, 2012
UNITED STATES DISTRICT JUDGE
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, March 15, 2012, by electronic and/or ordinary
Case Manager, (313) 234-5160
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?