Smith v. Bergh
Filing
43
ORDER denying 38 Motion for Relief from Judgment. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDWIN ANTHONY SMITH,
2:16-cv-10098
Petitioner,
HON. TERRENCE G. BERG
v.
ORDER DENYING MOTION
FOR RELIEF FROM
JUDGMENT
DAVID BERGH,
Respondent.
Petitioner Edwin Anthony Smith, a state prisoner at the Kinross
Correctional Facility in Kincheloe, Michigan, petitioned this Court for a
writ of habeas corpus under 28 U.S.C. § 2254. The pro se habeas petition
challenged Petitioner’s conviction for first-degree criminal sexual
conduct. See Mich. Comp. Laws § 750.520b(1)(a) (sexual penetration of a
person under the age of thirteen). This Court denied the habeas petition
and Petitioner’s subsequent motion for reconsideration. The Sixth Circuit
then declined to grant Petitioner a certificate of appealability. Now before
the Court are Petitioner’s motion for relief from judgment under Rule
60(b), which he also frames as a Rule 60(d) independent action, and his
request to amend that motion. ECF Nos. 38, 39. The Rule 60 motion and
independent action alleges fraud on the Court. But because Petitioner
has failed to show that an officer of the court committed fraud on this
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Court, the motion for relief from judgment, ECF No. 38, will be denied.
The Court will grant the motion to amend, ECF No. 39, and has
considered the arguments contained in that brief.
BACKGROUND
Petitioner was charged with three counts of first-degree criminal
sexual conduct arising from the sexual penetration of his then-twelveyear-old stepdaughter. People v. Smith, No. 312021, 2014 WL 4263093,
at *1 (Mich. Ct. App. Aug. 28, 2014) (per curiam) (unpublished). At trial,
Petitioner’s stepdaughter testified that Petitioner penetrated her with
two sex toys, one orange and the other purple, and then performed oral
sex on her. Id. When the police executed a search warrant, they seized an
orange sex toy from among Petitioner’s belongings. Id. The purple sex toy
was never found. Id. During the case’s early stages, the prosecutor said
she would send the orange sex toy to the state crime lab for DNA analysis
but never did. Id. During Petitioner’s 2012 trial, defense counsel did not
challenge the prosecutor’s failure to have the orange sex toy tested for
DNA evidence. Id. Instead, counsel aggressively cross-examined the
officer in charge of the criminal investigation on her decision not to
conduct DNA analysis, as well as her failure to investigate other
potentially exculpatory leads. Id. Upon the completion of the trial in
Wayne County Circuit Court, a jury convicted Petitioner of one count of
first-degree criminal sexual conduct for sexual penetration of the
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complainant using the orange sex toy. Id. Petitioner was acquitted of the
remaining two counts. Id. The trial court sentenced Petitioner as a third
habitual offender to 25 to 38 years in prison. Id.
Petitioner appealed his conviction to the Michigan Court of
Appeals. Before that court, he argued that the Michigan statute requiring
him to serve a minimum sentence of 25 years violated the separation-ofpowers doctrine by infringing on the sentencing judge’s discretion. In a
separate pro se supplemental brief, Petitioner offered additional grounds
for relief, arguing that the trial court failed to control the proceedings,
especially by allowing exculpatory evidence to be excluded, that the
prosecution relied on perjured testimony to obtain the conviction, and
that trial counsel was ineffective in failing to investigate the case,
refusing to object to the trial court’s failure to control the proceedings,
and refusing to object to the prosecutor’s conduct.
The Michigan Court of Appeals agreed to hold Petitioner’s appeal
in abeyance so that the orange sex toy could be tested for DNA. See People
v. Smith, No. 312021 (Mich. Ct. App. Sept. 18, 2013). A few months later,
on January 13, 2014, Bode Technology of Lorton, Virginia submitted a
forensic case report to Petitioner’s appellate attorney. ECF No. 1,
PageID.235–36 (Habeas Pet.). DNA analysis was conducted on samples
taken from two parts of the orange sex toy involved in the underlying
case. Id. The lab’s report concluded that the partial DNA profile obtained
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from one of the samples was “consistent with a mixture of at least two
individuals” but “no conclusions [could] be made on the partial DNA
profile.” Id. at PageID.235. Petitioner’s conviction was ultimately upheld
by the Michigan Court of Appeals, which concluded that none of
Petitioner’s claims warranted relief. Smith, 2014 WL 4263093. Petitioner
then raised the same claims in the Michigan Supreme Court, which
denied leave to appeal on May 28, 2015. See People v. Smith, 863 N.W.2d
316 (Mich. 2015).
Petitioner filed his federal habeas petition in 2016. As grounds for
relief, he alleged that: the trial court failed to take appropriate action in
response to the prosecutor’s failure to present DNA evidence at trial; the
prosecutor committed misconduct by choosing not to pursue DNA testing
and by presenting perjured testimony; and that trial counsel was
ineffective in failing to investigate and present potential defenses. The
Court denied the habeas petition on January 31, 2019 because
Petitioner’s claims about the trial court and prosecutor were procedurally
defaulted, and because the state appellate court’s adjudication of
Petitioner’s claim about trial counsel was reasonable. ECF No. 28 (Jan.
31, 2019 Order).
Petitioner moved for reconsideration of the Court’s order and for an
evidentiary hearing. ECF Nos. 32, 33. He argued that, because he had
produced evidence rebutting the Michigan Court of Appeals’ findings, the
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Court should not apply the deferential standard mandated by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104132, 110 Stat. 1214, 28 U.S.C. § 2244(b), and relevant Supreme Court
precedent. Petitioner sought an evidentiary hearing regarding the
prosecutor’s alleged misconduct and results of the DNA analysis. The
Court denied those motions, declined to issue a certificate of
appealability, and instructed Petitioner not to file any additional motions
for reconsideration without leave of this Court. ECF No. 35.
Petitioner then appealed the Court’s opinion and order denying his
motion for reconsideration of the habeas petition. ECF No. 36. While his
appeal was pending before the Sixth Circuit, Petitioner filed the instant
motion for relief from judgment and independent action under Rule 60,
and the related motion to amend.
Before this Court ruled on Petitioner’s motions, the Sixth Circuit
denied Petitioner’s application for a certificate of appealability. ECF No.
40. The appeals court concluded that reasonable jurists would not find it
debatable whether this Court erred in rejecting Petitioner’s claim that he
received ineffective assistance of trial counsel and that reasonable jurists
could not disagree with this Court’s determination that Petitioner’s other
claims were procedurally defaulted. The Court now proceeds to address
Petitioner’s motion for relief from judgment and independent action, and
his request to amend that motion.
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DISCUSSION
Petitioner brings his motion for relief from judgment and
independent action under Rules 60(b)(3), 60(d)(1), and 60(d)(3) of the
Federal Rules of Civil Procedure. He argues that the Assistant Attorney
General who responded to his habeas petition on behalf of the State of
Michigan committed fraud on the court by omitting certain material facts
in her response. In his motion to amend, Petitioner seeks to raise an
additional claim of fraud on the court by the trial prosecutor.
Rule 60(b) allows a party to seek relief from a final judgment on
limited grounds, including “fraud . . . misrepresentation, or misconduct
by an opposing party”. Similarly, under Rule 60(d), a federal court may
“entertain an independent action to relieve a party from a judgment,” and
“set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d).
Independent actions are, however, an equitable remedy “available only
to prevent a grave miscarriage of justice,” United States v. Beggerly, 524
U.S. 38, 47 (1998), “a ‘stringent’ and ‘demanding’ standard.” Mitchell v.
Rees, 651 F.3d 593, 595 (6th Cir. 2011). In a habeas case, meeting this
high bar requires a strong showing of actual innocence. Id. at 595–96.
Calderon v. Thompson, 523 U.S. 538, 557–58 (1998) (holding that
“avoiding a miscarriage of justice as defined by our habeas corpus
jurisprudence” requires “a strong showing of actual innocence”).
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Petitioner claims that the Assistant Attorney General for the
State committed fraud on the court by omitting material facts in her
response to his habeas petition. Specifically, Petitioner contends that the
Assistant Attorney General failed to include in her response facts
concerning:
(1)
the parties’ agreement about DNA testing and the state appellate
court’s comment that the factual premise for Petitioner’s
argument—that the prosecutor duped the jury—was not supported
by the record;
(2)
the prosecutor’s and trial court’s use of perjured testimony by a
police officer and the complainant, failure to correct that perjured
testimony, and failure to disclose that the trial court and prosecutor
allowed the complainant to commit perjury;
(3)
the prosecutor’s selection of jurors who would not demand she
provide DNA evidence, and the trial court’s jury instruction that
the prosecutor had no obligation to provide evidence other than the
complainant’s testimony;
(4)
the prosecutor’s failure to preserve exculpatory evidence by
destroying the “on/off” button on the orange sex toy during trial;
(5)
the prosecutor’s objection to Petitioner’s comment at sentencing
that the prosecutor never sent the orange sex toy to the lab for
testing; and
(6)
trial counsel’s failure to discover before trial the parties’ agreement
to test the orange sex toy for DNA evidence.
The Sixth Circuit has defined fraud on the court as conduct (1) on
the part of an officer of the court that (2) is directed to the judicial
machinery itself, (3) is intentionally false, willfully blind to the truth, or
is in reckless disregard for the truth, (4) is a positive averment or a
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concealment when one is under a duty to disclose, and (5) in fact deceives
the court. Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir. 1993). A
habeas petitioner has the burden of proving the existence of fraud on the
court by clear and convincing evidence. Carter v. Anderson, 585 F.3d
1007, 1011–12 (6th Cir. 2009); Info–Hold, Inc. v. Sound Merch., Inc., 538
F.3d 448, 454 (6th Cir. 2008).
Here, the Court acknowledges that the attorneys for the State are
officers of the court, H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co.,
536 F.2d 1115, 1119 (6th Cir. 1976), and that the Assistant Attorney
General directed her conduct to the Court when she filed a response to
the habeas petition. Nevertheless, there is no evidence that the Assistant
Attorney General’s response to the habeas petition was intentionally
false, willfully blind to the truth, or submitted in reckless disregard for
the truth.
There also is no evidence that the Assistant Attorney General
concealed evidence from the Court or deceived the Court. In fact, she
disclosed the material facts to the Court by filing transcripts of the
pretrial proceedings in Petitioner’s criminal case, the trial transcript, the
sentencing transcript, the parties’ appellate briefs, and the state courts’
decisions. Some of these items are the very documents that Petitioner
relies on to make his point that there was an agreement to test the orange
sex toy for DNA evidence, that the complainant’s trial testimony differed
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from her prior testimony, and that the proceedings were tainted with
perjury. The Court had all the documents it needed to render a decision
on Petitioner’s claims.
Turning to Petitioner’s claims about the trial prosecutor, even if the
trial prosecutor engaged in misconduct and the complainant committed
perjury, that fraud would have been perpetrated against the state court
in Petitioner’s criminal case. Neither the prosecutor nor the complainant
interacted with this Court. To prevail on his claim, Petitioner “must show
by clear and convincing evidence that a fraud was perpetrated on the
federal court, not just the state court.” Thompkins v. Berghuis, 509 F.
App’x 517, 519 (6th Cir. 2013). Stated differently, Petitioner must show
that a fraud was “committed by an officer of the federal habeas trial or
appellate courts.” Buell v. Anderson, 48 F. App’x 491, 499 (6th Cir. 2002)
(citing Workman v. Bell, 227 F.3d 331, 336, 341 (6th Cir. 2000) (en banc)).
He has failed to make the necessary showing. A witness’s alleged perjury,
moreover, does not suffice to constitute a fraud on the court. Preferred
Properties, Inc. v. Indian River Estates, Inc., 214 F. App’x 538, 540 (6th
Cir. 2007) (citing H.K. Porter Co., 536 F.2d at 1118)).
Petitioner also has failed to make a strong showing of actual
innocence, which Supreme Court precedent requires a habeas petitioner
demonstrate before proceeding with a Rule 60(d) independent action. See
Calderon, 523 U.S. at 557–58 (1998). The complainant’s testimony was
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sufficient to convict Petitioner; it did not have to be corroborated. Mich.
Comp. Laws § 750.520h. Further, as the Court has previously pointed
out, the DNA test results were not clearly exculpatory; they were
inconclusive.
CONCLUSION
Based on the foregoing, it is ORDERED that Petitioner’s motion
for relief from judgment and independent action (ECF No. 38) is
DENIED. His request to amend the motion for relief from judgment and
independent action (ECF No. 39) is GRANTED and has been taken into
consideration.
The Court declines to issue a certificate of appealability because
reasonable jurists could not disagree with the Court’s resolution of
Petitioner’s claims, nor conclude that the issues presented deserve
encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). Nevertheless, if Petitioner decides to appeal this Court’s
decision, he may proceed in forma pauperis because an appeal could be
taken in good faith.
SO ORDERED.
Dated: June 12, 2020
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
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Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on June 12, 2020.
s/A. Chubb
Case Manager
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