Tiggart v. Howes

Filing 9

ORDER denying in part 8 Motion for relief from judgment and transferring case to USCA for the Sixth Circuit. Signed by District Judge Marianne O. Battani. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MACK TIGGART,
Petitioner,

Case No. 2:10-CV-13816
HONORABLE MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE

v.
JEFFERY WOODS,

Respondent,
____________________________________/
ORDER DENYING IN PART THE RULE 60(B) MOTION FOR RELIEF FROM
JUDGMENT AND TRANSFERRING THE RULE 60(b)(d)(1) MOTION FOR
RELIEF FROM JUDGMENT TO THE COURT OF APPEALS
PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
I. Introduction
Before the Court is petitioner’s Rule 60(b)(6)(d)(1) motion for relief from
judgment. For the reasons that follow, the Court will deny in part the Rule 60(b)
motion for relief from judgment. The Court will further order the Clerk of the Court
to transfer the Rule 60(b) motion for relief from judgment to the Court of Appeals
pursuant to 28 U.S.C. § 2244(b)(3)(A).
II. Background
Petitioner filed a petition for a writ of habeas corpus challenging his 1990
conviction out of the Wayne County Circuit Court for first-degree felony murder
and felony-firearm. The petition was denied on the merits. See Tiggart v.
Robinson, U.S.D.C. No. 99-CV-40307 (E.D. Mich. September 25, 2000)(Gadola,
1

J.); aff’d 36 Fed. Appx. 750 (6th Cir. 2002); cert. den. 537 U.S. 849 (2002).
Petitioner was subsequently denied permission to file a second or successive
petition for writ of habeas corpus by the Sixth Circuit. See In Re Tiggart, U.S.C.A.
No. 09-2321 (6th Cir. September 14, 2010). In 2010, petitioner filed a second
petition for writ of habeas corpus, which this Court transferred to the Sixth Circuit
Court of Appeals for authorization to file a successive petition. Tiggart v. Howes,
2:10-CV-13816 (E.D. Mich. October 6, 2010). The Sixth Circuit denied petitioner
permission to file a second petition. See In Re Tiggart, No. 10-2314 (6th Cir.
August 11, 2011).
Petitioner has filed a motion for relief from judgment pursuant to Fed. R.
Civ. P. 60(b). In his motion for relief from judgment, petitioner claims that he filed
a motion for a Daubert hearing and for the appointment of counsel in the Wayne
County Circuit Court. The petitioner sought a hearing in the Wayne County
Circuit Court to challenge the testimony of the firearms and ballistics expert who
testified at his trial on the ground that the expert’s testimony was scientifically
unsound and unreliable. The state court judge denied the motion. In his motion
for relief from judgment, petitioner asks this Court to conduct a hearing on his
claim and determine that the firearms expert’s testimony did not pass muster
under F.R.E. 702 and United States Supreme Court case of Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993).

2

III. Discussion
As an initial matter, petitioner is unable to file a motion for relief from
judgment under Fed. R. Civ. P. 60(b) as an independent action to challenge his
state court convictions. Where a state prisoner is challenging the very fact or
duration of his physical imprisonment and the relief that he seeks is a
determination that he is entitled to immediate release or a speedier release from
that imprisonment, his sole federal remedy is a petition for writ of habeas corpus.
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A Rule 60(b) motion for relief
from judgment is not an appropriate vehicle for a habeas petitioner to attempt to
have his criminal conviction set aside. See United States v. Pope, 124 Fed. Appx.
680, 682 (2nd Cir. 2005). Although a Rule 60(b) motion may be used “to set aside
a habeas denial” in certain limited circumstances, such a motion “does not itself
seek habeas relief.” Id. (quoting Harris v. United States, 367 F. 3d 74, 80 (2nd Cir.
2004)). A review of petitioner’s motion for relief from judgment shows that he is
challenging the validity of his state court criminal convictions and that he seeks to
have these convictions vacated or set aside. Petitioner’s sole federal remedy to
challenge his state court convictions would be by filing a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
Secondly, to the extent that petitioner is challenging in his motion for relief
from judgment the Sixth Circuit’s prior decisions to deny him permission to file a
successive petition for writ of habeas corpus, he is not entitled to relief from
3

judgment. A district court lacks the authority to reinstate a habeas petitioner’s
second or successive petition for writ of habeas corpus after the Court of Appeals
declines to grant petitioner leave to file such a petition. See White v. Carter, 27
Fed. Appx. 312, 313-14 (6th Cir. 2001).
To the extent that petitioner has new evidence in support of his claims that
was not previously available, he must nonetheless obtain permission from the
Sixth Circuit before he can obtain habeas relief on the basis of this new evidence.
28 U.S.C. § 2244(b)(3)(A) prohibits a habeas petitioner from filing a second
or successive habeas petition in a federal district court, in the absence of an
order from the appropriate court of appeals authorizing the district court to
consider the successive petition. 28 U.S.C. § 2244(b)(3)(A); In re Wilson, 142 F.
3d 939, 940 (6th Cir. 1998). Unless the Sixth Circuit Court of Appeals has given
its approval for the filing of a second or successive petition, a district court in the
Sixth Circuit must transfer the petition or motion to the Sixth Circuit Court of
Appeals no matter how meritorious the district court believes the claim to be. See
In Re Sims, 111 F. 3d 45, 47 (6th Cir. 1997).
A Rule 60(b) motion for relief from judgment which seeks to advance one
or more substantive claims following the denial of a habeas petition, such as a
motion seeking leave to present a claim that was omitted from the habeas petition
due to mistake or excusable neglect, or seeking to present newly discovered
evidence not presented in the petition, or seeking relief from judgment due to an
4

alleged change in the substantive law since the prior habeas petition was denied,
should be classified as a “second or successive habeas petition,” which requires
authorization from the Court of Appeals before filing, pursuant to the provisions of
§ 2244(b). See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). On the other
hand, when a habeas petitioner’s Rule 60(b) motion alleges a “defect in the
integrity of the federal habeas proceedings,” the motion should not be transferred
to the circuit court for consideration as a second or successive habeas petition.
Id., at 532. A Rule 60(b) motion is not considered to be raising a claim on the
merits when the motion “merely asserts that a 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.
In the present case, petitioner seeks a hearing before this Court to
challenge the reliability of the firearms and ballistics expert who testified against
him in his state court prosecution. A habeas petitioner’s motion or filing should
be construed as a second or successive habeas petition where “[t]he motion’s
factual predicate deals primarily with the constitutionality of the underlying state
[or federal] conviction or sentence.” In Re Abdur’Rahman, 392 F.3d 174, 181 (6th
Cir. 2004) (citing Rodwell v. Pepe, 324 F.3d 66, 70 (1st Cir. 2003)). In this case,
regardless of how plaintiff characterizes his action, he is clearly attempting to
challenge the constitutionality of his convictions.
5

Petitioner has previously filed a habeas petition with the federal courts.
Although petitioner would not have been required to obtain a certificate of
authorization following the dismissal of his petition if the entire petition had been
dismissed without prejudice on exhaustion grounds, See Harris v. Stovall, 22 F.
Supp. 2d 659, 664 (E.D. Mich. 1998), petitioner’s first habeas petition was
adjudicated on the merits. The current motion for relief from judgment constitutes
a successive petition for which petitioner is required to obtain a certificate of
authorization from the Sixth Circuit.
The current motion is therefore a second or successive petition for habeas
relief. Although neither party raised the issue of this being a second or
successive petition, it is appropriate for this Court to consider the issue sua
sponte because subject matter jurisdiction goes to the power of the courts to
render decisions under Article III of the Constitution. See Williams v. Stegall, 945
F. Supp. 145, 146 (E.D. Mich. 1996). Because this appears to be a second or
successive habeas petition, it would be error for this Court to dismiss the petition
as being time barred, rather than transfer it to the Sixth Circuit, because such a
timeliness inquiry would be premature prior to any determination by the Sixth
Circuit whether petitioner should be given authorization pursuant to 28 U.S.C. §
2244(b)(3)(A) to file a successive habeas petition. See In Re McDonald, 514 F.
3d 539, 543-44 (6th Cir. 2008).

6

IV. Conclusion
Based on the foregoing, the Court will deny in part the motion for relief from
judgment [Dkt. # 8].
The court further ORDERS the Clerk of the Court to transfer the motion for
relief from judgment [Dkt. # 8] to the United States Court of Appeals for the Sixth
Circuit for authorization to file a subsequent petition as required by 28 U.S.C. §
2244(b)(3)(A) pursuant to 28 U.S.C. § 1631 and In Re Sims, 111 F.3d 45, 47 (6th
Cir. 1997).
S/Marianne O. Battani
HON. MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
Dated: May 28, 2014

CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this Order was served
upon all parties of record via ordinary U.S. Mail and/or electronically.
s/Bernadette M. Thebolt
Case Manager

7