Wilson v. Place
OPINION and ORDER Denying Petitioner's re 12 MOTION for Equitable Tolling. Signed by District Judge Denise Page Hood. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number: 2:15-CV-12861
HON. DENISE PAGE HOOD
OPINION AND ORDER DENYING PETITIONER’S
MOTION FOR EQUITABLE TOLLING
Petitioner Darrell Wilson, a Michigan state prisoner, filed a pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2254, challenging his convictions for first-degree
felony murder, Mich. Comp. Laws § 750.316, armed robbery, Mich. Comp. Laws §
750.529; and false report of a felony, Mich. Comp. Laws § 750.411a(1). Respondent
filed a motion for summary judgment, arguing that the petition should be denied because
it was not timely filed. Petitioner did not file a response to the motion. On February 29,
2016, the Court granted Respondent’s motion and dismissed the petition. (ECF No. 10).
Now before the Court is Petitioner’s Motion for Equitable Tolling.
The Court concludes that it may not construe Petitioner’s motion as a motion for
reconsideration of the Court’s February 29, 2016 order because a motion for
reconsideration must be filed within fourteen days after the entry of the judgment or order
challenged. E.D. Mich. L.R. 7.1(h)(1). Petitioner’s motion was filed 60 days after the
entry of judgment in this case. The motion is also untimely under Federal Rule of Civil
Procedure 59(e), because a motion to alter or amend judgment under Rule 59(e) must be
filed no later than 28 days after entry of judgment. Fed. R. Civ. P. 59 (e).
The Court construes the motion as a motion for relief from judgment under Federal
Rule of Civil Procedure 60(b). Rule 60 (b) allows a court to relieve a party from a final
judgment for the following reasons:
mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
the judgment is void;
the judgment has been satisfied, release, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is not longer equitable; or
any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
The Court finds that none of the factors cited in 60(b)(1)-(5) is applicable.
Petitioner makes no showing of mistake, inadvertence, surprise or excusable neglect.
Rule 60(b)(1). Nor does he rely upon newly discovered evidence or evidence of fraud,
misrepresentation or misconduct of an opposing party. Rule 60(b)(2)-(3). Relief is
allowed under Rule 60(b)(4) only in the instance of a “jurisdictional error” or “a violation
of due process,” neither of which is alleged here. Northeast Coalition for Homeless v.
Husted, 696 F.3d 580, 601 (6th Cir. 2012), citing United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260 (2010). Rule 60 (b)(5) is also inapplicable because the judgment
has not been vacated or discharged. Rule 60(b)(6) remains the only possible avenue for
relief for Petitioner.
“[R]elief under Rule 60(b)(6) ... requires a showing of ‘extraordinary
circumstances.’” Gonzales v. Crosby, 545 U.S. 524, 546 (2005). The Court granted
Respondent’s motion and dismissed the petition because it was filed almost one year after
the limitations period expired. In his motion, Petitioner argues that he is entitled to
equitable tolling of the limitations period because his appellate attorney did not timely
inform him when the Michigan Supreme Court denied his application for leave to appeal,
causing the late filing of his habeas corpus petition. He states that he learned the
application had been denied two years after the Supreme Court’s decision when he and
his family members inquired about the status of his appeal. Petitioner’s circumstances are
not extraordinary. Petitioner’s argument in support of equitable tolling could have been
raised in his petition, in his 796-page pleading in support of the petition, or in a reply to
Respondent’s motion for summary judgment. Instead, he raises the argument for the first
time in the pending motion. The Court is not persuaded by Petitioner’s claim that he
failed to realize the significance of this argument until after the Court dismissed his
petition. The significance of this argument would have been apparent to even a layperson
upon the filing of Respondent’s motion. The Court finds no extraordinary circumstances
warranting relief under Rule 60(b)(6).
The Court also denies Petitioner a certificate of appealability. A habeas petitioner
is required to obtain a certificate of appealability before he can appeal the denial of a
60(b) motion for relief from judgment that seeks to challenge the judgment in a habeas
case. See United States v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007). “[J]urists of
reason” would not find it debatable whether this Court is correct in its decision denying
the motion and the Court denies a certificate of appealability. Slack v. McDaniel, 529
U.S. 473, 484 (2000).
Accordingly, the Court DENIES Petitioner’s Motion for Equitable Tolling (ECF
No. 12) and DENIES a certificate of appealability.
s/Denise Page Hood
DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE
DATE: December 29, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of
record on December 29, 2016, by electronic and/or ordinary mail.
Case Manager Generalist
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