Price v. Birkett

Filing 20

ORDER transferring 19 Motion for Rule 60(B) to the United States Court of Appeals for the Sixth Circuit as a subsequent petition for writ of habeas corpus. Signed by District Judge David M. Lawson. (DPer)

Case 2:12-cv-13399-DML-DRG ECF No. 20, PageID.424 Filed 11/02/20 Page 1 of 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TYRONE PRICE,
Petitioner,

Case Number 12-13399
Honorable David M. Lawson

v.
TOM BIRKETT,
Respondent,
___________________________________/
ORDER TRANSFERRING RULE 60(B) MOTION TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
AS A SUBSEQUENT PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Tyrone Price, currently a federal prisoner, previously filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254 challenging state court convictions for carrying a
concealed weapon, possession of a firearm as a convicted felon, and possession of a firearm during
the commission of a felony. The Honorable Avern Cohn denied the petition on the merits. Price
v. Birkett, No. 12-13399, 2013 WL 1499548 (E.D. Mich. Apr. 10, 2013).
The petitioner now has filed a motion for relief from judgment under Federal Rule of Civil
Procedure 60(b). In that motion, Price contends that he is actually innocent of the charges, there
was insufficient evidence to support his firearms convictions, and Judge Cohn erred by denying
his post-judgment motion for discovery without requiring a response from the respondent. Price
adds the arguments that the prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), by failing
to turn over evidence of the fingerprint examination of the weapon; that his convictions for several
different firearms convictions violates the Double Jeopardy Clause of the Fifth Amendment; and
that his counsel was ineffective.

Case 2:12-cv-13399-DML-DRG ECF No. 20, PageID.425 Filed 11/02/20 Page 2 of 3

This Rule 60(b) motion plainly attacks the same state court criminal conviction addressed
in his original habeas corpus petition by raising new grounds for relief. The motion therefore is
subject to the restrictions on second or successive habeas petitions under 28 U.S.C. § 2244(b)(3),
even though Price invoked Rule 60(b). Therefore, the Court must transfer the motion to the court
of appeals so that Price may seek permission to file a second or successive petition.
A prisoner who wishes to file a second or successive habeas petition must first ask the court
of appeals for an order authorizing the district court to adjudicate the petition. 28 U.S.C. §
2244(b)(3)(A); Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). When a habeas petitioner
files a second or successive petition for habeas corpus relief in the district court without first
obtaining permission to do so from the court of appeals, the district court must transfer the petition
to the court of appeals under 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
A Rule 60(b) motion for relief from judgment amounts to a “second or successive habeas
petition” when it seeks to advance one or more substantive claims following the denial of a habeas
petition, it seeks leave to present a claim that was omitted from the habeas petition due to mistake
or excusable neglect, it seeks to present newly discovered evidence not presented in the petition,
or it seeks relief from judgment due to an alleged change in the substantive law since the earlier
habeas petition was denied. See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). In those instances,
the Court of Appeals must authorize the new filing under section 2244(b). A Rule 60(b) motion
can be considered as raising “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.” Id. at 532. “A motion that seeks to add a new ground for
relief [] will of course qualify” as a successive petition. Ibid.

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Case 2:12-cv-13399-DML-DRG ECF No. 20, PageID.426 Filed 11/02/20 Page 3 of 3

The petitioner’s Rule 60(b) motion is an attempt to file second or successive habeas petition
because the motion seeks to re-litigate the claims that he previously raised in his prior habeas
petition, see In re Bowling, 422 F. 3d 434, 440 (6th Cir. 2005), and seeks to add new grounds for
relief, see Brooks v. Bobby, 660 F.3d 959, 962 (6th Cir. 2011).
Accordingly, it is ORDERED that the Clerk of Court transfer the motion for relief from
judgment (ECF No. 19) to the United States Court of Appeals for the Sixth Circuit under 28 U.S.C.
§ 1631.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: November 2, 2020

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