Johnson v. 3rd Judicial Circuit court Officials et al

Filing 2

OPINION and ORDER of Summary Dismissal Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARRYL JOHNSON,
Petitioner,

Civil Action No. 2:13-CV-10292
HONORABLE DENISE PAGE HOOD
UNITED STATES DISTRICT COURT

v.
3RD JUDICIAL CIRCUIT COURT
OFFICIALS, et. al.,
Respondents,
/

OPINION AND ORDER OF SUMMARY DISMISSAL
Darryl Johnson, (“Petitioner”), presently incarcerated at the St. Louis
Correctional Facility in St. Louis, Michigan, has filed an independent action for
relief from judgment under Fed. R. Civ. P. 60(d)(3), which he has formally entitled
“Criminal Complaint of Extortion Malfeasance Fraud & Perjury Rule 60(b)(d)(3).”
In his application, filed pro se, Petitioner challenges his criminal convictions for
unspecified offenses out of the Wayne County Circuit Court. For the reasons
stated below, the motion for relief from judgment is dismissed without prejudice.
I. Background
Petitioner was convicted of unspecified convictions in the Wayne County
Circuit Court. It is unclear whether petitioner appealed his conviction to the
Michigan Court of Appeals or to the Michigan Supreme Court.
Petitioner has now filed a motion for relief from judgment pursuant to Fed.

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R.Civ. P. 60(b)(d)(3), in which he challenges his criminal convictions by claiming
that a fraud was committed upon the state court by the prosecutor and the police
and various court officials.
II. Discussion
Where a state prisoner is challenging the very fact or duration of his or her
physical imprisonment and the relief that he or she seeks is a determination that
he or she is entitled to immediate release or a speedier release from that
imprisonment, his or her 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 or her 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)). In this case, a Rule 60(b) motion is not
appropriate, because petitioner is not seeking to set aside a denial of habeas
relief, since he never sought such relief in the form of a petition for writ of habeas
corpus. Id. 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
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habeas corpus pursuant to 28 U.S.C. § 2254.
When a pro se prisoner files a mislabeled civil action that should have been
filed under the habeas corpus statute, the suit should not be converted into a
habeas corpus action and decided on the merits. Instead, the proper action is to
dismiss the action without prejudice. See Staples v. Casperson, 6 Fed. Appx.
481, 483-84 (7th Cir. 2001). Thus, rather than re-characterizing petitioner’s
motion as a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §
2254, this Court shall dismiss his claims without prejudice to avoid any adverse
consequences with respect to any § 2254 claim or claims that petitioner may wish
to file in the future. See Martin v. Overton, 391 F. 3d 710, 713 (6th Cir.
2004)(holding that the district court should have dismissed the habeas petitioner’s
§ 2241 petition without prejudice to allow petitioner to raise his potential civil
rights claims properly as a § 1983 action rather than to re-characterize it as a §
2254 petition without notice to petitioner); See also Hornsby v. Booker, No. 06CV-11612, 2006 WL 932101, * 1 (E.D. Mich. April 11, 2006)(dismissing Rule
60(b) motion for relief from judgment that had been brought to challenge state
court conviction without prejudice, rather than converting it to a petition for writ of
habeas corpus brought pursuant to 28 U.S.C. § 2254); Brown v. Lafler,
05-CV-72437DT; 2005 WL 2122101, * 2 (E.D. Mich. August 31, 2005)(same).

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III. ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that Petitioner’s Rule
60(b)(d)(3) motion for relief from judgment is DISMISSED WITHOUT PREJUDICE.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: February 7, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of
record on February 7, 2013, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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