Germain et al v. Larson

Filing 47

ORDER denying Petitioner Germain's 43 Motion to Correct Record, to Set Aside Void Judgment of Dismissal, for Evidentiary Hearing, for Oral Argument, for Appointment of Counsel, for Court to Take Judicial Notice for the Record, Renewed Motion For Writ of Habeas Corpus and Class Certification and Motion for Summary Order of Release of Petitioners. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JEFFREY LYNN GERMAIN, et al.,
Plaintiff,
Case No: 13-12904

v.
LARSON,
Defendant.
/

ORDER DENYING PETITIONER GERMAIN’S MOTIONS
On July 3, 2013, a habeas petition was filed in this court. The petition purported
to be filed on behalf of seven prisoners; however, because it was signed by only two
prisoners who had not shown that they were authorized to seek relief on behalf of the
non-signing prisoners, the court dismissed the non-signing prisoners without prejudice.
As to the remaining Petitioners, the court held that the claims raised in the petition did
not warrant habeas relief and summarily dismissed the petition under Rule 4, Rules
Governing Section 2254 Cases. Now before the Court is Petitioner Germain’s pleading
entitled:
“Motion to Correct Record” and; “Motion to Set Aide Void Judgment of
Dismissal” and; “Motion for Evidentiary Hearing” and; “Motion for Oral
Argument” and; “Motion for Appointment of Legal Counsel” and “Motion for
Court to Take Judicial Notice for the Record of Previous Erroneous
Conclusions that Were Published as ‘Judgment’ Doc. # 42” and; “Renewed
Motion for Writ of Habeas Corpus and Class Certification” and; “Motion for
Summary Order of Release of Petitioners Relative to the Original Writ of
Habeas Corpus 28 U.S.C. § 2241 Issues Embodied in Senior Action Case
No. 2:13-cv-12904.”

(Dkt. # 43, Pg. ID 2105.) This pleading, including the appendices, spans almost 350
pages, but, for the most part, simply reasserts the arguments raised in the original
petition.
Primarily, Petitioner disagrees with the court’s finding that the petition lacked
merit. Petitioner argues that, because, in his estimation, the court got it wrong, the
undersigned district judge should be removed from this action and investigated, counsel
should be appointed, and an evidentiary hearing should be conducted. “[J]udicial
rulings alone almost never constitute a valid basis for a bias or partiality motion . . . . In
and of themselves . . . they cannot possibly show reliance upon an extrajudicial source;
and can only in the rarest circumstances evidence the degree of favoritism or
antagonism required . . . . Almost invariably, they are proper grounds for appeal, not for
recusal.” Liteky v. United States, 510 U.S. 540, 555 (1994). In short, a judge’s orders,
informed by judicial proceedings, “do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would make fair
judgment impossible.” Id. Petitioner dislikes the court’s ruling, but fails to provide any
basis for recusal. Petitioner’s request for recusal will be denied. Similarly, his
associated requests for an evidentiary hearing and appointment of counsel will also be
denied.
Petitioner’s remaining arguments focus on the court’s decision dismissing the
petition and request relief from that judgment. He seeks relief under Fed. R. Civ. P.
60(b)(3) and 60(d)(3) on the ground that a fraud was committed. Rule 60(b)(3)
“requires fraud by an adverse party to warrant relief from judgment.” Mayhew v. Gusto
Record, Inc., 69 F. App’x 681, 682 (6th Cir. 2003). Rule 60(d)(3) provides that a
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judgment may be attacked for fraud on the court. Petitioner does not allege fraud by an
adverse party. Nor does he allege that a fraud was committed on the court. Instead, he
alleges that a fraud was committed by the court because its dismissal of the habeas
petition was incorrect. Neither Rule 60(b)(3) nor Rule 60(d)(3) allow for relief from
judgment under this circumstance. Moreover, Petitioner cites no rule or case law, and
the court is aware of none, for the proposition that a court’s ruling (even if ultimately
mistaken and/or reversed by a court of appeals) may constitute a “fraud.”
Finally, Petitioner also seeks relief under Fed. R. Civ. P. 60(b)(4). Rule 60(b)(4)
provides for relief in circumstances where the underlying judgment is void. Antoine v.
Atlas Turner, Inc., 66 F.3d 105, 108 (6th Cir. 1995). “A judgment is void under 60(b)(4)
‘if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or
if it acted in a manner inconsistent with due process of law.’” Id. (quoting In re Edwards,
962 F.2d 641, 644 (6th Cir. 1992)). Petitioner has failed to demonstrate that this court
lacked jurisdiction over his habeas corpus petition, or over the parties, or that this court
acted in a manner inconsistent with due process. Accordingly,
IT IS ORDERED that Petitioner’s “‘Motion to Correct Record’ and; ‘Motion to Set
Aside Void Judgment of Dismissal’ and; ‘Motion for Evidentiary Hearing’ and; ‘Motion for
Oral Argument’ and; ‘Motion for Appointment of Legal Counsel” and ‘Motion for Court to
Take Judicial Notice for the Record of Previous Erroneous Conclusions that Were
Published as ‘Judgment’ Doc. # 42' and; ‘Renewed Motion for Writ of Habeas Corpus
and Class Certification’ and; ‘Motion for Summary Order of Release of

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Petitioners’ relative to the Original Writ of Habeas Corpus 28 U.S.C. § 2241 Issues
Embodied in Senior Action Case No. 2:13-cv-12904,” (Dkt. # 43) is DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 23, 2014
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 23, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\13-12904.GERMAIN.deny motions.rljr.wpd

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