Smith v. Sherry

Filing 31

ORDER denying 28 Motion for Relief from Judgment. Signed by District Judge Marianne O. Battani. (BThe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BOBBY WAYNE SMITH, JR.,
Petitioner,
v.

CASE NO. 07-15231
HONORABLE MARIANNE O. BATTANI

JERI-ANN SHERRY,
Respondent.
_______________________________/
ORDER DENYING PETITIONER’S MOTION FOR RELIEF FROM JUDGMENT
On December 7, 2007, petitioner Bobby Wayne Smith, Jr., filed a habeas corpus
petition challenging his Oakland County convictions for first-degree murder, conspiracy
to commit first-degree murder, and possession of a firearm during the commission of a
felony. On April 26, 2010, the Court denied the habeas petition, and on January 28,
2011, the United States Court of Appeals for the Sixth Circuit denied Petitioner’s motion
for a certificate of appealability.
Currently pending before the Court is Petitioner’s motion for relief from judgment
pursuant to Federal Rule of Civil Procedure 60(b)(6). The motion seeks an evidentiary
hearing on Petitioner’s claim that his appellate attorney was ineffective.
Rule 60(b) permits federal courts to relieve a party from a final judgment for
certain specified reasons and for “any other reason that justifies relief.” Fed. R. Civ. P.
60(b)(6). The rule applies to habeas corpus proceedings, but a movant seeking relief
under Rule 60(b)(6) is required “to show ‘extraordinary circumstances’ justifying the

reopening of a final judgment. Such circumstances will rarely occur in the habeas
context.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (internal citations omitted).
The Court determined in its dispositive opinion and order of April 26, 2010, that
Petitioner procedurally defaulted habeas claims III through IX by not raising those
claims on direct appeal from his convictions. The Court went on to say that Petitioner
had failed to show that his appellate attorney’s strategy in presenting certain claims and
not raising other claims was deficient or unreasonable. The Court concluded that
appellate attorney was not “cause” for Petitioner’s procedural default and that, to the
extent Petitioner was raising a stand-alone claim of ineffective assistance of appellate
counsel, his claim failed.
Petitioner contends that the Court made a grave error in its determination about
appellate counsel’s strategy on appeal. He seeks an evidentiary hearing to develop the
facts regarding appellate counsel’s performance.
The Court of Appeals for the Sixth Circuit stated in its order denying Petitioner’s
motion for a certificate of appealability that reasonable jurists would not debate either
the District Court’s procedural-default ruling or the District Court’s assessment of
Petitioner’s claim about appellate counsel. This Court therefore concludes that no
extraordinary circumstance justifies the re-opening of the judgment for an evidentiary
hearing on appellate counsel’s performance. Accordingly, the motion for relief from
judgment [Dkt. #28] is DENIED.
The remaining question is whether a certificate of appealability should issue,
because a certificate of appealability is necessary to appeal the denial of a Rule 60(b)
motion for relief from judgment. Johnson v. Bell, 605 F.3d 333, 336 (6th Cir. 2010)
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(citing United States v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007)), petition for cert. filed,
No. 10-1009, 79 U.S.L.W. 3480 (U.S. Feb. 7, 2011). “A [certificate of appealability] may
issue ‘only if the applicant has made a substantial showing of the denial of a
constitutional right,’ 28 U.S.C. § 2253(c)(2), which the United States Supreme Court has
construed to mean that an applicant must show that reasonable jurists could debate that
the petition could have been resolved differently or that the claims raised deserved
further review.” Id. at 339 (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).
Reasonable jurists would not conclude that the issue raised here deserves
further review. Therefore, a certificate of appealability is DENIED.

s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
Dated: April 14, 2011

CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this Order was served upon the
Petitioner via ordinary U.S. Mail, and Counsel for the Respondent electronically.

s/Bernadette M. Thebolt
Case Manager

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