Davis v. Sherry

Filing 26

ORDER denying 25 Motion to Vacate. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LABARON ALEXANDER DAVIS,
Petitioner,

Case Number: 07-15482

v.

HON. AVERN COHN

JERI ANN SHERRY,
Respondent.
______________________________/

ORDER DENYING MOTION UNDER FED. R. CIV. P. 60(b)(4) (Doc. 25)
I.
This is a habeas case under 28 U.S.C. § 2254. Petitioner Labaron Alexander
Davis (Petitioner), a state inmate, filed a pro se petition for a writ of habeas corpus
challenging his convictions for armed robbery, assault with intent to commit great bodily
harm less than murder, felon in possession of a firearm, and felony firearm. Petitioner
raised thirteen claims. The Court denied the petition, finding no merit in any of
Petitioner’s claims. (Doc. 23).
Before the Court is Petitioner’s motion under Fed. R. Civ. P. 60(b)(4). For the
reasons that follow, the motion is DENIED.
II.
Fed. R. Civ. P. 60(b) provides in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud, Etc. On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative from a final judgment, order,
or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence which by due diligence could

not have been discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or (6) any other
reason justifying relief from the operation of the judgment.
III.
Petitioner is not entitled to relief. First, the motion is untimely. A motion under
Rule 60(b) must be filed within a reasonable time and for reasons under subsections
(1), (2) and (3), “no more than one year after entry of the judgment or order or the date
of the proceedings.” Fed. R. Civ. P. 60(c). The Court denied the petition in June of
2012. Petitioner filed the instant motion in June of 2016, four years later. This is not
within a reasonable time.
Second, Petitioner has not satisfied the standard for relief under Rule 60(b)(4).
This subsection pertains to void judgments, i.e. a judgment that should have never
entered. See Jalapeno Prop. Mgmt., LLC v. Dukas, 265 F.3d 506, 515 (6th Cir.2001)
(Batchelder, J., concurring) (“A void judgment is one which, from its inception, was a
complete nullity and without legal effect.” (quoting Lubben v. Selective Serv. Sys. Local
Bd. No. 27, 453 F.2d 645, 649 (1st Cir.1 972))). “ ‘A judgment is not void ... simply
because it is or may have been erroneous,’ ” United Student Aid Funds, Inc. v.
Espinosa, ––– U.S. ––––, 130 S.Ct. 1367, 1377 (quoting Hoult v. Hoult, 57 F.3d 1, 6
(1st Cir. 1995)) and “a motion under Rule 60(b)(4) is not a substitute for a timely
appeal,” Id. Otherwise, “Rule 60(b)(4)'s exception to finality would swallow the rule.”
Id. “Rule 60(b)(4) applies only in the rare instance where a judgment is premised either
on a certain type of jurisdictional error or on a violation of due process that deprives a
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party of notice or the opportunity to be heard.” Id. (emphasis added).
Here, although Petitioner contends that the Court’s judgment was “void” and the
Court “denied him due process” and “lacked jurisdiction,” Petitioner is in reality
rearguing that he is entitled to habeas relief. This is not grounds for relief under Rule
60(b)(4).
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: September 19, 2016

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