Phillip Brown v Carol Howes

Filing 143

OPINION AND ORDER Denying Petitioner's Motion to Vacate Order, [ 133 ], Denying Petitioner's Motion for Evidentiary Hearing, [ 134 ], and Denying Petitioner's Motion to Re-Open Habeas Proceeding, [ 135 ], and Granting Respondent's Motion for Extension, [ 139 ]. Signed by District Judge Stephen J. Murphy, III. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PHILLIP BROWN,
Petitioner,
v.

Case No. 2:09-cv-14850
HONORABLE STEPHEN J. MURPHY, III

JEFFREY WOODS,
Respondent.
______________________________/
OPINION AND ORDER DENYING
PETITIONER'S MOTION TO VACATE
ORDER, [133], DENYING PETITIONER'S MOTION
FOR EVIDENTIARY HEARING, [134], AND DENYING
PETITIONER'S MOTION TO RE-OPEN HABEAS PROCEEDING,
[135], AND GRANTING RESPONDENT'S MOTION FOR EXTENSION, [139]
Petitioner Philip Brown ("Petitioner") was convicted after a jury trial in the
Oakland Circuit Court of first-degree murder and felonious assault, and he was
sentenced to a mandatory term of life imprisonment. ECF 23-18, PgID 1546–47. After
protracted appellate and post-conviction review proceedings in the state courts,
Petitioner's federal habeas petition was denied by the Court on June 12, 2014. ECF
109. Petitioner appealed, and the Sixth Circuit affirmed. Brown v. Curtin, 661 F.
App'x 398 (6th Cir. Nov. 4, 2016).
Before the Court are several motions filed by Petitioner that essentially ask
the Court to reopen this case so he can relitigate and better support claims already
rejected by the Court and the Sixth Circuit. ECF 133, 134, 135. Respondent was
ordered to file a Response, but did so untimely. ECF 140. Respondent also filed a

motion for extension of time to file a response brief. ECF 139. For the reasons stated
below, the Court will grant Respondent's motion to file its late response, and it will
deny all of Petitioner's motions.
BACKGROUND
Underneath the myriad of legal arguments presented by Petitioner in his
motions rests the substantial weight of the evidence presented at trial demonstrating
his guilt.
A more thorough account of the evidence presented at trial appears in the Sixth
Circuit's amended opinion affirming the denial of the habeas petition. See Brown, 661
F. App'x at 400–04. In brief summary, Petitioner's conviction arises from his stabbing
and shooting of Randy Pardy. Petitioner did not contest at trial that he killed Pardy,
but he testified that he acted in self-defense. Id. at 401. The evidence presented at
trial persuasively undermined that defense.
Brian Weigold, Petitioner's roommate, was an eyewitness to the homicide.
Weigold testified that on the day of the incident Pardy entered the apartment he
shared with Petitioner without knocking. Pardy and Weigold then went into
Weigold's room. Id. at 401
Seconds after Purdy left Weigold's room on his way out of the apartment,
Weigold heard him scream that he had been shot. Weigold went out to investigate,
and he saw Pardy leaning against a wall with an arrow sticking out of his arm.
Wiegold then saw Petitioner run up to Pardy and jab at him with a knife, and noticed
that Petitioner had a trigger release for his bow around his wrist. Id.
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Pardy ran back through the kitchen towards the bathroom. As Petitioner
pursued him past Weigold, Weigold tried to stop him, but he swung the knife at
Weigold. At no time did Weigold see Pardy armed with a knife or other weapon. Id.
Weigold ran outside and called 9-1-1. Id. Petitioner followed a short time late and told
Wiegold not to say anything. Petitioner took off in his car and fled the state. Id.
When emergency responders arrived, they found Pardy lying on his back on
the bathroom floor. Id. at 402. Pardy had two stab wounds to his abdomen, including
one that pierced his heart, killing him. Id. A deputy found a bow, arrows, a quiver,
and the trigger release outside near the apartment. One piece of the arrow that
wounded Pardy was found in the garbage can in the bathroom, and the other broken
part was found discarded outside. Id.
Petitioner testified that he acted in self-defense. Id. at 401. He confirmed the
fact that he and Pardy got into an altercation when Pardy arrived at the apartment.
But contrary to Weigold's testimony, he claimed that Pardy grabbed a knife off a shelf,
causing him to fear for his life. Id. at 402–03. Petitioner testified that he ran into the
utility room, grabbed his bow, and, without using the trigger release, shot Pardy as
he advanced towards him with the knife. Id. at 403.
Petitioner testified that Pardy dropped the knife after being shot with the
arrow. He claimed that when he saw Pardy reach down to retrieve the knife,
Petitioner picked it up first and stabbed Pardy in the side. Id. While still armed with
the knife, Petitioner pursued an unarmed Pardy into the bathroom. He then admitted
to kicking open the door, but he denied stabbing Pardy again. Id.
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Petitioner conceded that he had no justification for stabbing Pardy a second
time, nor for chasing him into the bathroom. Once in the bathroom, Petitioner said
he tried to pull the arrow out of Pardy's arm, but it broke in half. Id. at 403. He
admitted to then grabbing the bow, the trigger release he denied using, and arrows,
and then threw them over a fence on the way to his car. Id. The evidence proving
Petitioner's guilt and disproving self-defense was extremely strong.
The numerous legal claims Petitioner raised in his state court appeals, his
federal habeas petition, the appeal of its denial, and in the present motions are all
based on three factual predicates. First, the jury sent a note to the court during its
deliberations asking whether fingerprints were found on the knife. Ultimately, the
court instructed the jury: "There were no fingerprints found on the knife." ECF 135,
PgID 4204. The record indicates that the prosecutor and defense counsel stipulated
to the answer given by the trial court, though no fingerprint evidence regarding the
knife was admitted at trial. Brown, 661 Fed. App'x at 409.
Petitioner raises a number of legal claims related to the jury note. He claims
that he was denied his right to be present during a critical stage. ECF 135, PgID
4227. He argues he was denied his right to confrontation regarding the information
in the response. Id. at 4207. He asserts that he was denied his right to a public trial
because the answer to the note was not given in open court. Id. at 4212. He asserts
that his counsel was ineffective for entering into the stipulation and that his failure
to object constituted the complete denial of counsel. Id. at 4222–23. It is difficult to

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tell if Petitioner attached additional legal theories in relation to the note based on his
briefing.
The second factual predicate for Petitioner's claims involves the fact that
Weigold had a pending felony at the time of trial. ECF 134, PgID 4141. Petitioner
argues that he was unable to cross-examine Wigold about these felonies to show
motive and bias, which deprived him of his Sixth Amendment right to confront
witnesses. Id; ECF 1, PgID 3.
The final factual predicate is a relatively brief exchange during Petitioner's
cross-examination when the prosecutor asked Petitioner whether he told a detective
in jail that he "acted in a violent manner." See ECF 135, 4220–22. Defense counsel
objected, Petitioner denied he made the statement, and no extrinsic evidence was
offered to show that he made such a statement. ECF 23-14, PgID 1376–1384.
Petitioner claims that his right against self-incrimination was denied by the
exchange. ECF 135, 4220.
In his motion for relief from judgment Petitioner takes these three factual
predicates and the legal claims surrounding them, and in overlapping and rather
abstruse arguments, asserts that there were seven "defects" in the manner the Court
and the Sixth Circuit adjudicated his claims: (1) the courts failed to apply current
Supreme Court law with respect to his claim that the response to the jury note
violated his confrontation rights, looked to the wrong state court decision to
adjudicate the claim, failed to address whether Petitioner waived the claim, failed to
order an evidentiary hearing on trial counsel's affidavit claiming that he did not
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stipulate to the response to the note, and failed to address the prejudicial impact of
the answer to the jury; (2) the Sixth Circuit erred in failing to order a mandatory
evidentiary hearing to determine the prejudicial impact of the response to the note;
(3) the courts failed to adjudicate the merits of his claim regarding his alleged
statement about acting in a violent manner; (4) the courts failed to adjudicate his
denial of counsel claims at a critical stage and/or Strickland claims with a complete
trial record; (5) the courts failed to address Petitioner's structural error arguments;
(6) the courts failed to address Petitioner's prosecutorial misconduct claims; and (7)
the courts failed to address Petitioner's free-standing ineffective assistance of
appellate counsel claim. See generally ECF 135.
Petitioner's motion for an evidentiary hearing, despite its label, does not
appear to seek a hearing regarding the reasons for the delay in filing his motion for
relief from judgment. ECF 134. The body of the motion, as far as the Court can tell
from the unclear arguments presented, asserts that Petitioner is entitled to a hearing
on his substantive claims for habeas relief.
STANDARD OF REVIEW
Petitioner states that he is filing his motion for relief from judgment under
Federal Rule of Civil Procedure 60(b)(1), (b)(3), (b)(6), (d)(1), and (d)(3). The
subsections of Rule 60(b) relied upon by Petitioner permit a district court to grant
relief from judgment for (1) mistake, inadvertence, surprise, or excusable neglect; (3)
fraud . . . , misrepresentation, or misconduct by an opposing party; or (6) any other
reason that justifies relief.
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The Supreme Court addressed the interplay of Rule 60(b) and 28 U.S.C.
§ 2244(b)'s prohibition against filing successive habeas petitions in Gonzalez v.
Crosby, 545 U.S. 524 (2005). The Gonzalez Court found that "Rule 60(b) has an
unquestionably valid role to play in habeas cases." Id. at 534. But a "true" Rule 60(b)
motion "attacks, not the substance of the federal court's resolution of a claim on the
merits, but some defect in the integrity of the federal habeas proceedings." Id. at 532.
Rule 60(b) motions are appropriate "when no 'claim' is presented," and "neither the
motion itself nor the federal judgment from which it seeks relief substantively
addresses federal grounds for setting aside the movant's state conviction. . . ." Id. at
533.
Gonzalez provided guidance on how to apply its holding:
In most cases, determining whether a Rule 60(b) motion advances one
or more "claims" will be relatively simple. A motion that seeks to add a
new ground for relief . . . will of course qualify. A motion can also be said
to bring a "claim" if it attacks the federal court's previous resolution of
a claim on the merits, since alleging that the court erred in denying
habeas relief on the merits is effectively indistinguishable from alleging
that the movant is, under the substantive provisions of the statutes,
entitled to habeas relief. That is not the case, however, when a Rule
60(b) motion attacks, not the substance of the federal court's resolution
of a claim on the merits, but some defect in the integrity of the federal
habeas proceedings.
Gonzalez, 545 U.S. at 532 (footnotes omitted) (emphasis in original). The Court
further opined,
The term "on the merits" has multiple usages. We refer here to a
determination that there exist or do not exist grounds entitling a
petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d).
When a movant asserts one of those grounds (or asserts that a previous
ruling regarding one of those grounds was in error) he is making a
habeas corpus claim. He is not doing so when he merely asserts that a
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previous ruling which precluded a merits determination was in error—
for example, a denial for such reasons as failure to exhaust, procedural
default, or statute-of-limitations bar.
Id. at 532 n.4 (citation omitted).
Many of the arguments presented by Petitioner in his motion for relief from
judgment are prohibited attacks on a federal court's previous resolution of claims on
the merits. To the extent it does so, those claims are not properly before the Court.
The quality of the briefing makes it less than clear exactly what Petitioner is
claiming. And as explained below, all of Petitioner's arguments are nevertheless
without merit because at root they seek to recast issues Petitioner already presented
or could have presented to both the Court and the Sixth Circuit and were rejected by
both.
With respect to Petitioner's reliance on Rule 60(d)(1), that rule allows the Court
to "entertain an independent action to relieve a party from a judgment, order or
proceeding." But "an independent action should be available only to prevent a grave
miscarriage of justice." U.S. v. Beggerly, 524 U.S. 38, 47 (1998).
DISCUSSION
I.

Respondent's Motion for Extension of Time
Respondent was ordered to file a response to Petitioner's post-judgment

motions by March 12, 2019. ECF 137. Respondent missed the deadline and filed a
motion for extension of time on April 19, 2019, asserting that the assistant attorney
general assigned to the case had been reassigned to a different unit. ECF 139. The
response was filed on May 8, 2019. ECF 140. Federal Rule of Civil Procedure
8 

6(b)(1)(A) authorizes the Court to extend any time period specified in its orders for
good cause. The Court agrees with Respondent, and for the reasons stated in
Respondent's motion, the motion for extension of time will be granted.
II.

The Timing of Petitioner's Motion for Relief from Judgment
Petitioner purports to bring his motion for relief from judgment under three

subsections of Rule 60(b): (1), (3), and (6). A 60(b) motion must be made within a
reasonable time, and for reasons (1) and (3), not more than one year after the entry
of the judgment or order or the date of the proceeding. Fed. R. Civ. P. 60(c)(1). There
is no explicit time limit for filing under Rule 60(b)(6), but the motion must be made
within a "reasonable time." See Thompson v. Bell, 580 F.3d 423, 443–44 (6th Cir.
2009).
A party who fails to take timely action due to a reason stated in Rule 60(b)(1)
or (3) may not seek relief more than a year after the judgment by invoking subsection
(6) on the same basis. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507
U.S. 380, 393 (1993).
Petitioner primarily asserts that he is entitled to relief from judgment because
both the Court and the Sixth Circuit failed to adjudicate several of his claims on the
merits, improperly defaulted some of his claims, failed to use the proper standard,
overlooked several of his arguments, and failed to recognize when and on what basis
the state courts decided his claims. These arguments attempt to invoke the "mistake"
ground for relief under Rule 60(b)(1). See Barrier v. Beaver, 712 F.2d 231, 234–35 (6th
Cir. 1983) (Rule 60(b)(1) encompasses mistakes that constitute inadvertent judicial
9 

oversight). They do not speak to the longer time-period allowed for be subsection
(b)(6).
Moreover, "[t]o justify relief under subsection (6), a party must show
'extraordinary circumstances' suggesting that the party is faultless in the delay. . . .
If a party is partly to blame for the delay, relief must be sought within one year under
subsection (1) and the party's neglect must be excusable." Pioneer Inv. Servs. Co., 507
U.S. at 393 (internal citations and quotations omitted). Petitioner was certainly
aware of the grounds for the decision by the Court, and he either did or could have
raised any arguments about the Court's alleged failure to address any of his
arguments on appeal to the Sixth Circuit. With respect to the Sixth Circuit's alleged
failure to address some of Petitioner's arguments, Petitioner was aware of the
grounds for the decision when the Sixth Circuit issued its first opinion on July 27,
2016. ECF 127. Petitioner then filed a petition for rehearing, raising arguments
virtually indistinguishable from those raised in his 60(b) motion, and the Sixth
Circuit issued an amended opinion on November 4, 2016. ECF 128. Petitioner filed
for en banc rehearing from the amended opinion, raising (or having the ability to
raise) the same issues he raises now. ECF 140-2, PgID 4421. Petitioner filed his 60(b)
motion on December 7, 2018, over two years after the Sixth Circuit issued its
amended opinion. ECF 135. Thus, to the extent Rule 60(b)(6) applies at all, Petitioner
was not "faultless" for any delay because the grounds for his motion were all available
to him when the courts issued their decisions. And even if subsection (b)(6) applies,

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it was not reasonable for Petitioner to wait two years after the Sixth Circuit issued
its amended decision to file his motion.
Petitioner also asserts that relief from judgment is also warranted under
subsection (b)(3) for fraud because Respondent has allegedly fraudulently maintained
throughout all proceedings that Petitioner's trial counsel stipulated to the answer to
the jury note. See generally ECF 135. Petitioner's allegation is not new and has been
advanced by Petitioner since 2009. ECF 1. His trial counsel's affidavit claiming that
he never stipulated to the answer to the note is dated December 10, 2009. See ECF
135-2, PgID 4241. Petitioner has been making the allegation since the beginning of
the action. He has not uncovered some new additional fraud to justify the delay in
filing his motion for relief from judgment.
Because the Court construes Petitioner's motion as properly governed by Rule
60(b)(1), relief cannot be granted under Rule 60(b)(6), and the motion is barred from
review under Rule 60(b)(1)'s time limitation. See Pioneer Inv. Servs. Co., 507 U.S. at
393. A Rule 60(b)(1) motion must be made "not more than one year after the
judgment, order or proceeding was entered or taken." Fed. R. Civ. P. 60(c)(1). The
Court does not have the discretion to extend Rule 60(b)'s period of limitation. Fed. R.
Civ. P. 6(b)(2); see also Smith v. Sec'y of Health & Human Servs., 776 F.2d 1330,
1332–33 (6th Cir. 1985).
Petitioner asserts that the one-year time limit is tolled for the period of time
he was seeking direct review of the denial of his habeas petition. ECF 135, PgID 4200.
Petitioner cites several cases from the Sixth Circuit that he claims stand for the
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proposition, but none of those cases so hold. Id. Indeed, authority directly addressing
the issue hold that the one-year period is not tolled during appeal. See The Tool Box,
Inc. v. Ogden City Corp., 419 F.3d 1084, 1089 (10th Cir. 2005); King v. First Am.
Investigations, Inc., 287 F.3d 91, 94 (2d Cir. 2002); Wright and Miller, 11 Fed. Prac.
& Proc. Civ. § 2866 (3d ed.) (Motion for relief from judgment "can be made even
though an appeal has been taken and is pending. For this reason, it is held that the
pendency of an appeal does not extend the one-year limit."). In fact, Petitioner filed
an earlier motion for relief from judgment while his appeal was pending that the
Court denied on August 18, 2015. See ECF 120.1
III.

Relief Under Rule 60(d)
Petitioner makes no effort to develop an argument for why he is entitled to

relief under Rule 60(d)(1) or (3). An independent action under Rule 60(d) is "available
only to prevent a grave miscarriage of justice." United States v. Beggerly, 524 U.S. 38,
47(1998). The Sixth Circuit has held that in the context of a habeas case, to
demonstrate entitlement to relief under Rule 60(d), a petitioner must make a strong
showing of actual innocence. Mitchell v. Rees, 651 F.3d 593, 595–96 (6th Cir. 2011)
(citing Calderon v. Thompson, 523 U.S. 538, 557–58 (1998). Petitioner makes no

Petitioner also seeks an evidentiary hearing on the timeliness of his motion for relief
from judgment. ECF 134. The arguments presented in the motion appear to address
Petitioner’s argument that his underlying substantive claims for habeas relief require
an evidentiary hearing to be properly adjudicated. He does not appear to seek a
hearing to demonstrate facts related to the reasons for the timing of his motion. That
motion will therefore be denied.
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1

attempt to demonstrate his actual innocence. He is not entitled to relief under Rule
60(d).
IV.

Petitioner's Arguments are Barred by Law of the Case
Assuming Petitioner's motion was timely filed, it fails because it asks the Court

to reverse the decision of the Sixth Circuit based on arguments already rejected by
that Court. Petitioner's motion is rather forthright about his intentions, claiming at
various points that: (1) the "Sixth Circuit . . . misapplied the doctrine of default and
waiver" with respect to his confrontation claim; (2) "[t]he Sixth Circuit clearly erred
which precluded a merits decision;" (3) "the Sixth Circuit also engaged in a defective
cause and prejudice analysis for IATC;" (4) "the Sixth Circuit misapplied the doctrines
of default and waiver which precluded an actual merits decision;" (5) "on [r]e[h]earing before the Sixth Circuit, the Panel admitted for the first time that the
impartial jury claim had not been adjudicated on the merits, but did not remand for
a Remmer hearing;" (6) "the Sixth Circuit compounded the defect in the lower court's
judgment by failing to remand;" (7) "the Sixth Circuit followed suit by overlooking"
Petitioner's trial counsels' affidavit; (8) "[t]he Sixth Circuit [i]mproperly [a]pplied
AEDPA [d]eference [t]o [p]rejudice;" (9) "[b]oth Federal Courts identified the wrong
state court judgment;" (10) "the Sixth Circuit compounded" the defect of not
adjudicating the actual merits of Petitioner's claim "by again relying on the wrong
state court judgment, failing to consider the factual record, and refusing to identify
any relevant holdings for the right to be present;" (11) "the Sixth Circuit then
compounded this defect [of not identifying prior Supreme Court holdings] in [its]
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holding and suggested or held that 'any error' was subject to harmless analysis;" (12)
"[t]he Sixth Circuit [i]mproperly [a]pplied '[l]ook [t]hrough' [a]nalysis [a]nd AEDPA
[d]eference [t]o [t]he [w]rong [s]tate [c]ourt [j]udgment;" and (13) "the Sixth Circuit
then erred by applying AEDPA deference to the wrong state court decision." ECF 135,
PgID 4208–09, 4211, 4218–19, 4222, 4224, 4227–29, 4232–33.
After the Sixth Circuit issued its first opinion affirming the denial of the writ,
Petitioner filed numerous motions for rehearing where he could have raised the
aforementioned issues. See ECF 140-2. A habeas petitioner "may not raise arguments
during [his] first federal habeas proceeding, lose those arguments (because he could
not show prejudice), then raise the same arguments based on the same evidence in a
Rule 60(b) motion." Brooks v. Bobby, 660 F.3d 959, 962 (6th Cir. 2011). The Sixth
Circuit has unambiguously held "[a] Rule 60(b) motion is neither a substitute for, nor
a supplement to, an appeal." GenCorp, Inc. v. Olin Corp., 477 F.3d 368, 373 (6th Cir.
2007). "[A]rguments that were, or should have been, presented on appeal are
generally unreviewable on a Rule 60(b) motion." Id.
The law-of-the-case doctrine "precludes reconsideration of issues decided at an
earlier stage of the case." Yeschick v. Mineta, 675 F.3d 622, 633 (6th Cir. 2012)
(internal citations and quotations omitted); United States v. Moored, 38 F.3d 1419,
1421 (6th Cir. 1994). To the extent that Petitioner has added additional wrinkles to
his arguments, the law-of-the-case doctrine also bars arguments that could have
been, but were not, raised in a prior appeal. See JGR, Inc. v. Thomasville Furniture
Indus., Inc., 505 F. App'x 430, 435 (6th Cir. 2012. Contrary to Petitioner's requested
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relief, the Court may not reverse the decision of the Sixth Circuit. United States v.
Todd, 920 F.2d 399, 403, n.1 (6th Cir. 1990) ("when a superior court determines the
law of the case, an inferior court lacks the power to depart from it").
The Court finds that all the arguments raised by Petitioner in his motion for
relief from judgment were, or could have been, raised by Petitioner on appeal. The
Sixth Circuit either explicitly or implicitly rejected all of his current arguments when
it issued its amended opinion and then denied rehearing and rehearing en banc.
Petitioner has therefore failed to demonstrate entitlement to relief from judgment.
V.

Petitioner's Motion to Vacate Order Denying Reconsideration
The Court denied the habeas petition on June 12, 2014. ECF 109. Petitioner

filed a motion for reconsideration on June 24, 2014. ECF 111. He then filed a notice
of appeal on July 11, 2014. ECF 113. The Court denied reconsideration on March 20,
2015. ECF 116. Petitioner asserts that once he filed a notice of appeal, the Court
lacked jurisdiction to rule on his motion for reconsideration. ECF 133, PgID 4122.
Petitioner previously filed a motion to vacate the same order denying his motion for
reconsideration, ECF 122, and the Court denied that motion. ECF 123. Petitioner's
latest motion does not offer any new grounds for vacating the order denying
reconsideration. The motion is therefore denied for the reasons previously stated.
VI.

Certificate of Appealability
Before Petitioner may appeal the rulings, a certificate of appealability must

issue. 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).
15 

The following standard for determining whether a certificate of appealability should
issue in the context of the denial of a Rule 60(b) motion:
A COA should issue only if the petitioner shows that (1) jurists of reason
would find it debatable whether the district court abused its discretion
in denying the Rule 60(b) motion, and (2) jurists of reason would find it
debatable whether the underlying habeas petition, in light of the
grounds alleged to support the 60(b) motion, states a valid claim of the
denial of a constitutional right.
Carr v. Warren, 2010 WL 2868421, *2 (E.D. Mich. July 21, 2010) (citing Kellogg v.
Strack, 269 F.3d 100, 104 (2d Cir. 2001). Petitioner fails to show that jurists of reason
would find it debatable that the Court abused its discretion by denying his Rule 60(d)
motion. The Court therefore denies a certificate of appealability.
ORDER
WHEREFORE, it is hereby ORDERED that Petitioner's motion to vacate
motion for reconsideration [133] is DENIED.
IT IS FURTHER ORDERED that Petitioners motion for evidentiary hearing
[134] is DENIED.
IT IS FURTHER ORDERED that Petitioner's motion to reopen habeas
proceeding [135] pursuant to Rule 60(b) is DENIED.
IT IS FURTHER ORDERED that Respondent's motion for extension of time
[139] is GRANTED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
SO ORDERED.

s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge

Dated: August 30, 2019
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I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 30, 2019, by electronic and/or ordinary mail.

s/ Karri Sandusky on behalf of
David Parker, Case Manager

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