Streets v. Stephenson

Filing 23

OPINION AND ORDER DENYING 21 THE MOTION FOR RELIEF FROM JUDGMENT. Signed by District Judge Paul D. Borman. (DTof)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TONY STREETS,
No. 2:16-12889
Petitioner,
Paul D. Borman
United States District Judge

v.
GEORGE STEPHENSON,
Respondent.
______________________________________/

OPINION AND ORDER DENYING THE
MOTION FOR RELIEF FROM JUDGMENT (ECF NO. 21)
Before the Court is petitioner’s Rule 60(b) motion for relief from judgment,
in which he seeks an extension of time to file an appeal. (ECF No. 21.) For the
reasons that follow, the motion is DENIED.
On September 19, 2018, this Court denied the petition for a writ of habeas
corpus brought pursuant to 28 U.S.C. § 2254 and declined to issue a certificate of
appealability or leave to appeal in forma pauperis. Streets v. Chapman, No. 2:1612889, 2018 WL 4492254 (E.D. Mich. Sept. 19, 2018).
The United States Court of Appeals for the Sixth Circuit dismissed
petitioner’s Notice of Appeal as being untimely filed. Streets v. Chapman, No. 182362, 2019 WL 2298736 (6th Cir. Feb. 27, 2019), reh’g denied (6th Cir. Apr. 3,
2019).
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Petitioner has now filed a Rule 60(b) motion for relief from judgment, in
which he asks this Court to reissue the judgment so that he can file a timely Notice
of Appeal. (ECF No. 21.) Petitioner seeks an extension of time to appeal on the
ground that he had filed a Notice of Appeal within the time period for doing so, but
that the Notice of Appeal was returned to him because petitioner failed to put the
entire address for the Sixth Circuit on the envelope containing the Notice of Appeal.
Petitioner re-filed a Notice of Appeal with a properly addressed envelope, but it was
received by the Sixth Circuit beyond the 30 day period to file a Notice of Appeal
and was thus rejected as untimely. Petitioner argues that he is entitled to reissuance
of the judgment based on his excusable neglect as a pro se litigant in failing to
properly address the envelope for the initial Notice of Appeal, coupled with the
failure by prison mailroom authorities to inspect and verify that petitioner’s legal
mail was properly addressed to the Sixth Circuit. Petitioner in his Rule 60(b) motion
for relief from judgment asks this Court to extend the time for him to file a Notice
of Appeal.
This Court is without power to grant petitioner an extension of time to appeal
because the Sixth Circuit has already determined that his Notice of Appeal was
untimely filed. Under the law of the case doctrine, a court is ordinarily precluded
from re-examining an issue previously decided by the same court, or by a higher
court in the same case. Consolidation Coal Co. v. McMahon, 77 F.3d 898, 905 n.5
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(6th Cir. 1996). The law of the case doctrine has been applied to habeas cases in
various contexts. See Crick v. Smith, 729 F.2d 1038, 1039 (6th Cir. 1984). Because
petitioner’s motion for an extension of time to file an appeal was filed with this Court
after the Sixth Circuit dismissed his appeal as untimely, that prior determination is
binding under the law of the case doctrine and cannot not be revisited here. Gibbs v.
Thaler, 459 F. App’x 336, 337 (5th Cir. 2012).
Moreover, petitioner is not entitled to equitable relief which would allow this
Court to grant petitioner’s Rule 60(b) motion for relief from judgment and extend
the time to file an appeal. When petitioner filed his initial untimely appeal, the Sixth
Circuit issued a show cause order on November 28, 2019 for petitioner to explain
why his appeal should not be dismissed as untimely. Streets v. Chapman, 2019 WL
2298736, at *1. Petitioner never responded to the Sixth Circuit’s show cause order.
Id. Petitioner was given an opportunity to bring to the Sixth Circuit’s attention the
equitable arguments that petitioner now raises for the first time in his motion for
relief from judgment. Petitioner offers this Court no reason why he did not respond
to the Sixth Circuit’s show cause order to bring his arguments for an extension of
time to appeal to that court’s attention. Contra Tanner v. Yukins, 776 F.3d 434, 437–
38 (6th Cir. 2015) (granting petitioner’s Rule 60(b) motion for an extension of time
to appeal when the petitioner had previously responded to the Sixth Circuit’s show
cause order).
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IT IS HEREBY ORDERED that the Motion for Relief From Judgment (ECF
No. 21) is DENIED.
IT IS SO ORDERED.
Dated: August 31, 2020

s/Paul D. Borman
Paul D. Borman
United States District Judge

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