Clark v. Romanowski

Filing 43

ORDER denying 42 Petitioner's Independent Action and Motion for Relief From Judgment. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GEORGE CLARK,
Petitioner,
v.

CASE NO. 08-10523
HONORABLE VICTORIA A. ROBERTS

KENNETH ROMANOWSKI,
Respondent.
_________________________________/
ORDER DENYING PETITIONER’S INDEPENDENT
ACTION AND MOTION FOR RELIEF FROM JUDGMENT
On February 5, 2008, petitioner George Clark (“Petitioner”) filed a petition for the
writ of habeas corpus through counsel. The habeas petition challenged Petitioner’s
Wayne County conviction for first-degree murder. On August 30, 2010, the Court
denied the petition, but granted a certificate of appealability on Petitioner’s claims under
the Confrontation Clause. Petitioner appealed the Court’s decision without success.
On March 23, 2012, the United States Court of Appeals for the Sixth Circuit affirmed this
Court’s decision after concluding that Petitioner procedurally defaulted his Confrontation
Clause claims.
Currently pending before the Court is Petitioner’s pro se “Rule 60(d)(3)
Independent Action Motion for Relief from Judgment.” The basis for Petitioner’s motion
is that his state appellate attorney, his habeas attorney, and the assistant attorney
general who filed an answer to the habeas petition committed a fraud on the courts.

I. Legal Framework
Rule 60(d) reads in relevant part:
(d) Other Powers to Grant Relief. This rule does not limit a
court's power to:
(1) entertain an independent action to relieve a party from a
judgment, order, or proceeding;
. . . . or
(3) set aside a judgment for fraud on the court.
An independent action under Rule 60(d)(1) is “an independent action in equity to
obtain relief from a judgment.” Mitchell v. Rees, 651 F.3d 593, 595 (6th Cir. 2011)
(quoting Barrett v. Sec’y of Health & Human Servs., 840 F.2d 1259, 1262-63 (6th Cir.
1987) (quoting 11 C. Wright & A. Miller, Federal Practice & Procedure § 2868, at 237-38
(1973)), cert. denied, __ U.S. __, 132 S. Ct. 1111 (2012). The elements of an
independent action are:
(1) a judgment which ought not, in equity and good conscience, to be
enforced; (2) a good defense to the alleged cause of action on which the
judgment is founded; (3) fraud, accident, or mistake which prevented the
defendant in the judgment from obtaining the benefit of his defense; (4)
the absence of fault or negligence on the part of the defendant; and (5) the
absence of any adequate remedy at law.
Id. (quoting Barrett, 840 F.2d at 1263 (citing 11 C. Wright & A. Miller, Federal Practice &
Procedure § 2868, at 238 (1973), and National Surety Co. v. State Bank, 120 F. 593,
599 (8th Cir. 1903)).
“[A]n independent action is ‘available only to prevent a grave miscarriage of
justice,’” and a “‘grave miscarriage of justice’ is a ‘stringent’ and ‘demanding’ standard.”
Id. (citations omitted). To establish that relief is required to prevent a grave miscarriage
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of justice in a habeas corpus case, the petitioner “must make a strong showing of actual
innocence.” Id. at 595-96.
II. Application
Petitioner has not made a strong showing of actual innocence. In fact, the state
trial court determined that there was ample evidence of first-degree murder, and this
Court determined in its dispositive opinion and order that the state court’s finding was
not contrary to, or an unreasonable application of, Jackson v. Virginia, 443 U.S. 307,
318 (1979) (stating that the relevant question on review of the sufficiency of the
evidence to support a criminal conviction “is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt”).
Although Petitioner alleges that a fraud was committed on the courts, the basis
for this contention is that his state appellate attorney filed an untimely application for
leave to appeal in the Michigan Supreme Court on direct appeal. Additionally, Petitioner
alleges that his habeas attorney forged his signature on the habeas petition, and the
assistant attorney general for the State of Michigan misled the Court in his answer to
the petition. None of these allegations pertain to Petitioner’s guilt or innocence.
Furthermore,
The elements of fraud on the court are:
conduct: 1) on the part of an officer of the court; that 2) is directed to the
judicial machinery itself; 3) is intentionally false, willfully blind to the truth,
or is in reckless disregard for the truth; 4) is a positive averment or a
concealment when one is under a duty to disclose; and 5) deceives the
court.
Carter v. Anderson, 585 F.3d 1007, 1011 (6th Cir. 2009) (citing Demjanjuk v. Petrovsky,
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10 F.3d 338, 348 (6th Cir. 1993)). Petitioner has the burden of proving the existence of
a fraud on the court by clear and convincing evidence. Id. (citing Info-Hold, Inc. v.
Sound Merch, Inc., 538 F.3d 448, 454 (6th Cir. 2008)).
Even assuming that Petitioner has satisfied the first and second elements of
fraud on the court, his allegations fall short of satisfying the other elements. The failure
to file a timely application for leave to appeal in state court may have been negligent
conduct, but there is no reason to believe that appellate counsel acted in an
intentionally false manner, with willful blindness to the truth, or with reckless disregard
for the truth. Nor did the late filing actually deceive the state court. The Clerk of the
Michigan Supreme Court rejected Petitioner’s application as untimely on July 29, 2005.
It also does not appear that Petitioner’s retained habeas attorney forged
Petitioner’s signature on the habeas petition. There are two signatures on the petition:
one purports to be the attorney’s signature and one purports to be Petitioner’s
signature. The two signatures are dissimilar. Further, at no point during the pendency
of the habeas petition did Petitioner object to his signature being forged. This leads the
Court to believe that, even if Petitioner’s former attorney signed the habeas petition in
Petitioner’s behalf, he likely did so with Petitioner’s approval.
As for Petitioner’s allegation about the Michigan Attorney’s General Office,
Petitioner merely states, without elaboration, that the assistant attorney general
submitted false and misleading facts to the Court. Petitioner’s conclusory allegation
about the assistant attorney general is not clear and convincing proof of fraud. The
Court, moreover, reviewed the state court record and does not believe that it was misled
by the facts set forth in the answer to the habeas petition.
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For all the reasons given above, the Court concludes that Petitioner has failed to
establish the elements of fraud on the court and the elements of an independent action
under Rule 60(d)(1). Accordingly, Petitioner’s Rule 60(d)(3) independent action and
motion for relief from judgment [dkt. #42, filed Aug. 27, 2012] is DENIED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: January 11, 2013
The undersigned certifies that a copy of
this document was served on the
attorneys of record and George E. Clark by
electronic means or U.S. Mail on January
11, 2013.
S/Carol A. Pinegar
Deputy Clerk

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