Kelly v. McKee

Filing 51

ORDER Denying 50 Motion for Relief from Judgment. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BERNARD KELLY,
Petitioner,
v.

Case Number 08-13777
Honorable David M. Lawson

KENNETH T. McKEE,
Respondent.
_________________________________/
ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT
Michigan prisoner Bernard Kelly filed a pro se petition for writ of habeas corpus under 28
U.S.C. § 2254 challenging his convictions of first-degree murder, two counts of assault with intent
to commit murder, and possession of a firearm in the commission of a felony (felony firearm). The
Court filed an opinion and judgment denying the petition on March 31, 2016. Kelly filed a motion
for reconsideration, asking the Court to grant him an evidentiary hearing, appoint counsel, and
“vacate” his convictions. The motion was denied on April 28, 2016. Kelly now brings a motion
under Federal Rule of Civil Procedure 60(b) seeking review of the Court’s opinion denying his
habeas corpus petition and granting him an evidentiary hearing.
Federal Rule of Civil Procedure 60(b) allows the Court to relieve a party from a final
judgment or order for several reasons, including “(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence . . . ; (3) fraud . . ., misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; [and] (5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable.” Fed. R. Civ. P. 60(b). Rule 60(b)(6) also permits the Court

to grant a motion for relief from judgment for “any other reason that justifies relief.” Fed. R. Civ.
P. 60(b)(6). Petitioner relies on subparagraphs (1) and (6).
A decision to grant or deny a Rule 60(b) motion “is a matter of discretion for the district
court.” Bank of Montreal v. Olafsson, 648 F.2d 1078, 1079 (6th Cir. 1981). Relief from a judgment
or order under Federal Rule of Civil Procedure 60(b) is an “extraordinary remedy that is granted
only in exceptional circumstances.” McAlpin v. Lexington 76 Auto Truck Stop, Inc., 229 F.3d 491,
502-03 (6th Cir. 2000). Rule 60(b) “does not allow a defeated litigant a second chance to convince
the court to rule in his or her favor by presenting new explanations, legal theories, or proof.” Jinks
v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001). In order to qualify for relief under Rule
60(b), “a party seeking relief from judgment must show the applicability of the rule.” Ibid.
Kelly’s main contention appears to be that the Court should have allowed an evidentiary
hearing on his ineffective assistance of counsel claim. However, the Sixth Circuit has taken the
stance that “the Supreme Court’s decision in Cullen v. Pinholster, [563 U.S. 170] (2011), prohibits
[federal courts] from considering new evidence in [a habeas] case.” Hodges v. Colson, 727 F.3d
517, 541 (6th Cir. 2013). The Pinholster Court held that “review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563
U.S. at 181. The court of appeals observed that the Supreme Court viewed the statute’s language
as “backward-looking;” therefore, habeas review “requires an examination of the state-court
decision at the time it was made. It follows that the record under review is limited to the record in
existence at that same time i.e., the record before the state court.” Hodges, 727 F.3d at 541 (quoting
Pinholster, 563 U.S. at 182). The court determined that evidentiary hearings under section

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2254(e)(2) are available only in cases in which the deferential standard of review prescribed in
section 2254(d)(1) does not apply.
The Court found Kelly’s ineffective assistance of counsel claim to lack merit when it denied
his original habeas petition. The petitioner has not identified any error of fact or law related to that
determination. The Court subsequently denied a motion for reconsideration that, in part, asked the
Court to grant him an evidentiary hearing on his ineffective assistance of counsel claim. Rule 60(b)
does not allow the petitioner “a second chance to convince the court to rule in his or her favor by
presenting new explanations, legal theories, or proof.” Jinks, 250 F.3d at 385. Relief under Rule
60(b) is an “extraordinary remedy that is granted only in exceptional circumstances.” McAlpin, 229
F.3d at 502-03. The Court does not find such circumstances in this case. Therefore, the Court will
deny the petitioner’s motion.
Accordingly, it is ORDERED that the petitioner’s motion for relief from judgment [dkt.
#50] is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 24, 2017

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on March 24, 2017.
s/Susan Pinkowski
SUSAN PINKOWSKI

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