Marion v. Berghuis

Filing 53

OPINION and ORDER Transferring 52 MOTION to USCA for the Sixth Circuit. Signed by District Judge Victoria A. Roberts. (SSch)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALLEN MARION,
Petitioner,
v.

Civil No. 2:12-CV-13127
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

JEFFREY WOODS,
Respondent,
____________________________________/
OPINION AND ORDER TRANSFERRING THE RULE 60(B) MOTION FOR
RELIEF FROM JUDGMENT [DKT. # 52] TO THE COURT OF APPEALS
This Court granted Petitioner a conditional writ of habeas corpus, holding that
Petitioner was denied the effective assistance of trial counsel because his attorney failed
to investigate and present an alibi defense. Marion v. Woods, 128 F Supp. 3d 987 (E.D.
Mich. 2015). The Sixth Circuit reversed the decision. Marion v. Woods, 663 F. App’x.
378 (6th Cir. 2016); cert. den. 137 S. Ct. 2291 (2017).
Petitioner filed a Rule 60(b) motion for relief from judgment. Petitioner alleges
that the Michigan Assistant Attorney General committed a fraud upon the court before the
United States Court of Appeals for the Sixth Circuit during the appeal of this Court’s
decision to grant habeas relief. Petitioner specifically alleges that the Assistant Attorney
General mislead the Sixth Circuit Court of Appeals by concealing or withholding an
affidavit that Petitioner supplied to this Court and to the state courts which supported his
ineffective assistance of counsel claim. Petitioner argues that had this affidavit not been

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concealed by the Assistant Attorney General, the Sixth Circuit would have affirmed the
decision to grant habeas relief.
“A motion brought pursuant to Rule 60(b) of the Federal Rules of Civil Procedure
for relief from a court order should be addressed to the court which entered the order.”
Porcelli v. Joseph Schlitz Brewing Co., 78 F.R.D. 499, 500 (E.D. Wis. 1978), aff’d sub
nom. Porcelli v. Jos. Schlitz Brewing Co., 588 F.2d 838 (7th Cir. 1978). Petitioner moved
for relief from judgment based on an alleged fraud committed upon the Sixth Circuit; this
Court is not the proper forum for the Rule 60(b) motion. Id.
A district court has the discretion, pursuant to 28 U.S.C. § 1631, to transfer a case
improperly filed in the district, in the interests of justice, to the proper court where the
case or motion could have been filed. The Court orders the Clerk of the Court to transfer
the motion for relief from judgment to the Sixth Circuit.
The Court ORDERS that:
The Clerk of the Court shall transfer The Rule 60(b) motion for relief from
judgment [Dkt. # 52] to the United States Court of Appeals for the Sixth
Circuit pursuant to 28 U.S.C. § 1631.

S/Victoria A. Roberts
HON. VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: June 11, 2018

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