Cobb v. Klee

Filing 14

OPINION & ORDER Denying Petitioner's Rule 60(B) Motion for Relief from Judgment (Dkt. 13 ), Declining to Issue a Certificate of Appealability, and Denying Permission for Leave to Appeal In Forma Pauperis. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER COBB,
Petitioner,
Case No. 15-cv-13682
v.
HON. MARK A. GOLDSMITH
PAUL KLEE,
Respondent.
______________________________/
OPINION & ORDER
DENYING PETITIONER’S RULE 60(B) MOTION FOR RELIEF FROM JUDGMENT
(Dkt. 13), DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
DENYING PERMISSION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
On June 24, 2016, the Court summarily denied Petitioner Christopher Cobb’s application
for a writ of habeas corpus on the ground that it was time-barred by the statute of limitations
contained in 28 U.S.C. § 2244(d). The Court also declined to issue a certificate of appealability
or to grant leave to appeal in forma pauperis. See Cobb v. Klee, No. 15-cv-13682, 2016 WL
3457944 (E.D. Mich. June 24, 2016).
Petitioner has now filed a motion for relief from judgment pursuant to Federal Rule of
Civil Procedure 60(b) (Dkt. 13). For the reasons that follow, the motion will be denied.
A Rule 60(b) motion for relief from judgment that seeks to advance one or more
substantive claims following the denial of a habeas petition, such as a motion seeking leave to
present a claim that was omitted from the habeas petition due to mistake or excusable neglect, or
seeking to present newly discovered evidence not presented in the petition, or seeking relief from
judgment due to an alleged change in the substantive law since the prior habeas petition was
denied, should be classified as a “second or successive habeas petition,” which requires

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authorization from the Court of Appeals before filing, pursuant to the provisions of 28 U.S.C.
§ 2244(b). See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). 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 habeas court’s determination on the merits
refers “to a determination that there exist or do not exist grounds entitling a petitioner to habeas
corpus relief under 28 U.S.C. §§ 2254(a) and (d).” Id. at 532 n.4.
On the other hand, when a habeas petitioner’s Rule 60(b) motion alleges a “defect in the
integrity of the federal habeas proceedings,” the motion should not be transferred to the circuit
court for consideration as a second or successive habeas petition. Id. at 532. A Rule 60(b)
motion is not considered as raising a claim on the merits when the motion “merely asserts that a
previous ruling which precluded a merits determination was in error-for example, a denial for
such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.” Id. at 532
n.4.
Petitioner’s motion, which argues that the one-year statute of limitations should be
equitably tolled based on a retroactive change in the law, constitutes a “true” 60(b) claim that
attacks the integrity of the habeas proceedings and would not be considered a successive habeas
petition. See Gonzalez, 545 U.S. at 533.
However, a motion for relief from judgment that attacks the integrity of a previous
habeas proceeding, but is nevertheless without merit, should simply be denied, as would any
other motion for relief from judgment that lacks merit. See Harris v. United States, 367 F. 3d 74,
82 (2d Cir. 2004). A Rule 60(b) motion is properly denied where the movant attempts to use the

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motion to relitigate the merits of a claim and the allegations are unsubstantiated. See Miles v.
Straub, 90 F. App’x 456, 458 (6th Cir. 2004). A movant under Rule 60(b) likewise fails to
demonstrate entitlement to relief when he or she simply rephrases the prior allegations that were
contained in the original complaint. See Johnson v. Unknown Dellatifa, 357 F.3d 539, 543 (6th
Cir. 2004). A habeas petitioner may not raise arguments during his initial federal habeas
proceeding, lose those arguments, then raise the same arguments based on the same evidence in a
Rule 60(b) motion for relief from judgment. See Brooks v. Bobby, 660 F.3d 959, 962 (6th Cir.
2011).
In his Rule 60(b) motion, Petitioner argues that the commencement of the one-year
limitations period should be postponed because of the Michigan Supreme Court case of People v.
Lockridge, 498 Mich. 358; 870 N.W.2d 502 (Mich. 2015), where the Michigan Supreme Court
held that Michigan’s Sentencing Guidelines scheme violates the Sixth Amendment right to a jury
trial. The Lockridge decision was based on the 2013 case of Alleyne v. United States, 133 S. Ct.
2151, 2155 ( 2013), in which the U.S. Supreme Court held that any fact that increases the
mandatory minimum sentence for a crime is an element of the criminal offense, which must be
proven beyond a reasonable doubt.
Petitioner raised this same argument in his motion for equitable tolling. This Court
rejected that argument in its opinion and order:
The United States Supreme Court’s decision in Alleyne would not
delay the commencement of the limitations period, because
Alleyne has not been made retroactive to cases on collateral
review. See In re Mazzio, 756 F.3d 487, 489-490 (6th Cir. 2014).
Additionally, Petitioner cannot use the Michigan Supreme Court’s
decision in Lockridge to invoke § 2244(d)(1)(C) to delay the
commencement of the limitations period. A state court’s ruling
does not constitute a new constitutional rule of law that would
delay the start of the limitations period under § 2244(d)(1)(C),
because the “AEDPA’s plain text requires a constitutional right
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‘newly recognized by the [United States] Supreme Court.’”
Broom v. Strickland, 579 F.3d 553, 557 (6th Cir. 2009).
Therefore, the Court finds that the instant petition is untimely.
Cobb, 2016 WL 3457944, at *3.
This Court denies Petitioner’s Rule 60(b) motion for relief from judgment, because
Petitioner is simply using the motion to relitigate the merits of his retroactivity argument, which
this Court previously rejected. See Miles, 90 F. App’x at 458. Accordingly, Petitioner is not
entitled to relief from judgment in this case.
The Court also denies Petitioner a certificate of appealability.

Title 28 U.S.C.

§ 2253(c)(1)(A) and Federal Rule of Appellate Procedure 22(b) provide that an appeal from the
district court’s denial of a writ of habeas corpus may not be taken unless a certificate of
appealability is issued either by a circuit court or district court judge. If an appeal is taken by an
applicant for a writ of habeas corpus, the district court judge shall either issue a certificate of
appealability or state the reasons why a certificate of appealability shall not issue. Fed. R. App.
P. 22(b). To obtain a certificate of appealability, a prisoner must make a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
When a district court denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claims, a certificate of appealability should issue, and an
appeal of the district court’s order may be taken, if the petitioner shows that jurists of reason
would find it debatable whether the petitioner states a valid claim of the denial of a constitutional
right, and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a plain procedural
bar is present, and the district court is correct to invoke it to dispose of the case, a reasonable
jurist could not conclude either that the district court erred in dismissing the petition, or that the

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petition should be allowed to proceed further. In such a circumstance, no appeal would be
warranted. Id.
In habeas cases involving a district court’s denial of a 60(b) motion for relief from
judgment on procedural grounds without reaching the merits of any constitutional claims, a
petitioner should be granted a certificate of appealability only if he makes both a substantial
showing that he or she had a valid claim of the denial of a constitutional right and a substantial
showing that the procedural ruling by the district court is wrong. See United States v. Hardin,
481 F.3d 924, 926 n.1 (6th Cir. 2007).
The Court concludes that Petitioner is not entitled to a certificate of appealability from
the denial of his motion for relief from judgment, because he has failed to make a substantial
showing of the denial of a constitutional right or that this Court’s procedural ruling was
incorrect. The Court further denies Petitioner leave to appeal in forma pauperis, because the
appeal would be frivolous. See Dell v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2002).
Accordingly, the Court denies the Petitioner’s Rule 60(b) motion for relief from
judgment (Dkt. #13), declines to issue a certificate of appealability, and denies leave to proceed
in forma pauperis on appeal.
SO ORDERED.
Dated: July 14, 2017
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on July 14, 2017.
s/Karri Sandusky
Case Manager
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