Clark v. Brewer

Filing 27

ORDER Denying Motion for Certificate of Appealability 26 and Denying Motion to Extend 25 . Signed by District Judge Victoria A. Roberts. (LVer)

Case 2:16-cv-13813-VAR-RSW ECF No. 27, PageID.1367 Filed 10/04/22 Page 1 of 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DWAYNE LAVON CLARK,
Petitioner,

Civil No. 2:16-cv-13813
Hon. Victoria A. Roberts

SHAWN BREWER,
Respondent.
/
ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY (ECF No. 26),
AND DENYING MOTION TO EXTEND (ECF No. 25)
This habeas petition filed by Michigan prisoner Dwayne Clark was denied on April 24,
2018, because his claims lacked merit. On October 30, 2018, after expiration of the 180-day
deadline for doing so, Petitioner filed a motion to reopen the time for filing a notice of appeal.
(ECF No. 9.) The Court denied Petitioner’s motion as the deadline is jurisdictional. (ECF No. 14.)
Petitioner filed a motion for reconsideration or for relief from judgment, again asserting that he
was entitled to appeal the denial of habeas relief. (ECF No. 15.) The Court denied the motion.
(ECF No. 17.) Petitioner filed a second motion for relief from judgment, largely making the same
arguments. (ECF No. 19.) The Court again denied the motion. (ECF No. 22.)
Before the Court is Petitioner’s motion for a certificate of appealability, seeking permission
to appeal the court’s denial of his second motion for relief from judgment regarding his failure to
timely seek an appeal in the Sixth Circuit. (ECF No. 26.)1

1

 Petitioner also filed a motion to extend time, (ECF No. 25), but it appears the motion relates to a

deadline the Sixth Circuit placed on Petitioner to pay the filing fee or apply for IFP in the Sixth
Circuit. That motion is DENIED because the request for relief must be made directly with the
Sixth Circuit. 

Case 2:16-cv-13813-VAR-RSW ECF No. 27, PageID.1368 Filed 10/04/22 Page 2 of 3

-2A certificate of appealability is necessary to appeal the denial of a Rule 60(b) motion. See
Johnson v. Bell, 605 F.3d 333, 336 (6th Cir. 2010)(citing United States v. Hardin, 481 F.3d 924,
926 (6th Cir. 2007)). A certificate of appealability may issue only if a habeas petitioner makes "a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a court
denies relief on the merits, the substantial showing threshold is met if the petitioner demonstrates
that reasonable jurists would find the court's assessment of the claim debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief on procedural grounds, a
certificate of appealability should issue if it is shown 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 court was correct in its procedural ruling. Id.
With Slack v. McDaniel in mind, judges within this district have adopted the following
standard for determining whether a certificate of appealability should issue in the context of the
denial of a Rule 60(b) motion:
A COA should issue only if the petitioner shows that (1) jurists of reason would
find it debatable whether the district court abused its discretion in denying the Rule
60(b) motion, and (2) jurists of reason would find it debatable whether the
underlying habeas petition, in light of the grounds alleged to support the 60(b)
motion, states a valid claim of the denial of a constitutional right.
Missouri v. Birkett, No. 2:08-CV-11660, 2012 U.S. Dist. LEXIS 34881, 2012 WL 882727, *2-3
(E.D. Mich. March 15, 2012); Carr v. Warren, No. 05-CV-73763, 2010 U.S. Dist. LEXIS 73349,
2010 WL 2868421, *2 (E.D. Mich. July 21, 2010) (both citing Kellogg v. Strack, 269 F.3d 100,
104 (2d Cir. 2001)).
Petitioner fails to show that jurists of reason would find it debatable that the Court abused
its discretion by denying his second Rule 60(b) motion, which largely raised arguments already

Case 2:16-cv-13813-VAR-RSW ECF No. 27, PageID.1369 Filed 10/04/22 Page 3 of 3

-3addressed and rejected in his previous motion. In short, and for the reasons more fully explained
in the Court’s previous orders, Petitioner admitted that he received actual notice of the denial of
his habeas petition about a month before the time expired to seek an extension for the filing
deadline to appeal under Federal Rule of Civil Procedure 4(a)(6). (See ECF No. 17, PageID.1290.)
Nothing Petitioner added in his second motion for relief from judgment presented extraordinary
circumstances justifying a different result. Accordingly, the Court DENIES a certificate of
appealability.
SO ORDERED.

Dated: 10/4/2022

s/ Victoria A. Roberts
Hon. Victoria A. Roberts
United States District Judge