Martinez v. Roggenbuck

Filing 13

ORDER denying 12 Motion for Relief From Judgment. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RICHARD JAMES MARTINEZ, #249674,
Petitioner,
CASE NO. 2:12-CV-11778
HONORABLE VICTORIA A. ROBERTS

v.
JOAN ROGGENBUCK,
Respondent.
/

ORDER DENYING PETITIONER’S MOTION FOR RELIEF FROM JUDGMENT
Before the Court is Petitioner Richard James Martinez’s pro se motion for relief from
judgment brought pursuant to Federal Rule of Civil Procedure 60(b) concerning the Court’s June
16, 2014 denial of his habeas petition. Petitioner filed a notice of appeal on June 27, 2014 and
submitted the appellate filing fee on August 11, 2014. He filed the present motion on October 20,
2014. He essentially seeks relief from judgment on the basis that habeas counsel failed to properly
investigate his case and failed to raise and argue all of his issues.
Petitioner’s motion must be denied. First, the Court lacks jurisdiction to decide the motion
because it was filed after his notice of appeal and the filing of his notice of appeal transferred
jurisdiction of the case to the United States Court of Appeals for the Sixth Circuit. Pickens v.
Howes, 549 F.3d 377, 381 (6th Cir. 2008); Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993);
see also Ruelas v. Wolfenbarger, 580 F.3d 403, 407 (6th Cir. 2009) (citing Pickens).
Second, even if the Court could rule on the motion, the Court would deny it. Under Federal
Rule of Civil Procedure 60(b), a district court may grant relief from a final judgment or order only
upon a showing of one of 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. Fed. R. Civ. P. 60(b).
Petitioner makes no such showing. First, he fails to demonstrate that the Court erred in
denying habeas relief on the claims contained in his petition. Second, to the extent that he contends
that habeas counsel was ineffective and failed to properly represent him, he is not entitled to relief.
There is no constitutional right to counsel in federal habeas proceedings, Cobas v. Burgess, 306 F.3d
441, 444 (6th Cir. 2002), and challenges to the adequacy of habeas counsel’s performance do not
amount to a fraud upon the court or go to the integrity of the proceedings. See Brooks v. Bobby, 660
F.3d 959, 962-63 (6th Cir. 2011). In fact, the federal habeas statute provides: “The ineffectiveness
or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not
be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i). Third, to
the extent that he seeks to raise new claims or arguments challenging his state court convictions
which he believes were not properly presented in his initial proceedings before this Court, his
motion constitutes a second or successive habeas petition. See Brooks, 660 F.3d at 962 (citing
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)). Such a second or successive petition must be
transferred to the Sixth Circuit for authorization to proceed. 28 U.S.C. § 2244(b)(3)(A); Stewart v.
Martinez-Villareal, 523 U.S. 637, 641 (1998); In re Wilson, 142 F.3d 939, 940 (6th Cir. 1998).

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Petitioner fails to establish that he is entitled to relief from judgment. Accordingly, the Court
DENIES his motion. This case remains closed.

S/VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: November 4, 2014

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