Longmire v. McCullick

Filing 52

ORDER transferring 47 Rule 60 motion seeking relief from judgment and motion for summary judgment to the USCA for the Sixth Circuit and denying as moot 50 Motion for order to show cause. Signed by District Judge Mark A. Goldsmith. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRAVIS SANTELL LONGMIRE,
Petitioner,

Case No. 2:17-cv-10148
HONORABLE MARK A. GOLDSMITH

v.
MARK MCCULLICK,
Respondent.
____________________________________/
OPINION AND ORDER
(1) TRANSFERRING THE RULE 60 MOTION SEEKING RELIEF FROM JUDGMENT
AND THE MOTION FOR SUMMARY JUDGMENT AND PARTIAL SUMMARY
JUDGMENT (Dkt. 47) TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) AND (2) DENYING AS
MOOT THE MOTION FOR THE ORDER TO SHOW CAUSE (Dkt. 50)
This matter is before the Court on Petitioner Travis Santell Longmire’s Rule 60 motion for
relief from judgment and his motion for summary judgment or partial summary judgment (Dkt.
47).1 Petitioner also filed a motion for an order to show cause (Dkt. 50), in which he asks for a
speedy adjudication of the Rule 60 motion. For the reasons that follow, the Court transfers the
Rule 60 motion for relief from judgment and the motion for summary judgment and partial
summary judgment to the United States Court of Appeals for the Sixth Circuit pursuant to 28
U.S.C. § 2244(b)(3)(A) for authorization to file a second or successive habeas petition. The motion
for an order to show cause is denied as moot.

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Petitioner invokes Rule 60(d), but it is actually Rule 60(b) that sets forth grounds for relief.

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I. BACKGROUND
Petitioner filed a petition for a writ of habeas corpus, challenging his convictions for armed
robbery, Mich. Comp. L. § 750.529, felon in possession of a firearm, Mich. Comp. L. § 750.224f,
and possession of a firearm during the commission of a felony, Mich. Comp. L. § 750.227b. This
Court denied with prejudice the petition for a writ of habeas corpus and declined to issue a
certificate of appealability, but granted Petitioner leave to appeal in forma pauperis. Longmire v.
McCullick, No. 2:17-cv-10148, 2019 WL 7282475 (E.D. Mich. Dec. 27, 2019). The United States
Court of Appeals for the Sixth Circuit denied Petitioner a certificate of appealability. Longmire
v. Bauman, No. 20-1092, 2020 WL 4346666 (6th Cir. June 11, 2020).
On September 10, 2020, Petitioner filed a Rule 60(b) motion for relief from judgment,
which was essentially a successive habeas petition (Dkt. 31). This Court reopened the case to the
Court’s active docket and transferred the Rule 60(b) motion for relief from judgment to the United
States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 2244(b) (Dkt. 34). On June
14, 2021, the Sixth Circuit denied Petitioner permission to file a successive habeas petition. In re
Longmire, No. 20-2107 (6th Cir. June 14, 2021).
On August 6, 2021, Petitioner filed a second Rule 60(b) motion, in which he again alleged
that the police and/or the Wayne County Prosecutor committed a fraud upon the court by
introducing into evidence a fabricated police investigator’s report or using it as the basis for
bringing criminal charges against him (Dkt. 36). Petitioner also alleged that his Thirteenth
Amendment rights were violated because he was “unduly” convicted based on the fabricated
investigator’s report. Id. Petitioner further argued that there was insufficient evidence to support
his conviction. Id. Petitioner further argued that the Sixth Circuit erred in denying him permission
to file a successive habeas petition by ignoring the fraud committed on the court. Id.

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This Court transferred the Rule 60(b) motion for relief from judgment to the Sixth Circuit
pursuant to 28 U.S.C. § 2244(b) (Dkt. 37). On March 29, 2022, the Sixth Circuit denied Petitioner
permission to file a successive habeas petition. In re Longmire, No. 21-1603 (6th Cir. Mar. 29,
2022).
On June 3, 2022, Petitioner filed a third Rule 60(b) motion in which he again alleged that
the police and/or the Wayne County Prosecutor committed a fraud upon the court by introducing
into evidence a fabricated police investigator’s report or using it as the basis for bringing criminal
charges against him (Dkt. 39). Petitioner also alleged that his Thirteenth Amendment rights were
violated because he was “unduly” convicted based on the fabricated investigator’s report. Id.
On October 20, 2022, this Court transferred the Rule 60(b) motion for relief from judgment
to the Sixth Circuit pursuant to 28 U.S.C. § 2244(b) (Dkt. 44). On February 13, 2023, the United
States Court of Appeals for the Sixth Circuit denied petitioner permission to file a successive
habeas petition. In re Longmire, No. 21-1603 (6th Cir. Feb. 13, 2023).
II. DISCUSSION
Petitioner has filed yet another Rule 60 motion for relief from judgment and a motion for
summary judgment or partial summary judgment (Dkt. 47). Petitioner seeks to add claims for
habeas relief to his original petition. He also seeks to relitigate some of the old claims from the
original petition.
A Rule 60(b) motion for relief from judgment is a “second or successive habeas petition”
if it seeks to advance one or more substantive claims following the denial of a habeas petition,
such as a motion seeking (i) leave to present a claim that was omitted from the habeas petition due
to mistake or excusable neglect, (ii) to present newly discovered evidence not presented in the
petition, or (iii) relief from judgment due to an alleged change in the substantive law since the

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prior habeas petition was denied, 28 U.S.C. § 2244(b). It requires authorization from the Court
of Appeals before filing. 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 (emphasis omitted, footnote omitted). 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 to be 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 for relief from judgment amounts to a second or successive habeas
petition because the motion seeks to advance claims that this Court previously considered and
dismissed on substantive, constitutional grounds. See Post v. Bradshaw, 422 F.3d 419, 424–425
(6th Cir. 2005). A motion for relief from judgment that seeks to introduce new evidence in support
of habeas claims that had previously been denied qualifies as a second or successive habeas
petition. See In re Bowling, 422 F.3d 434, 439–440 (6th Cir. 2005) (holding that habeas
petitioner’s Rule 60(b) motion, which sought to introduce new evidence in support of his

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previously adjudicated ineffective assistance of counsel claim, was a second or successive habeas
petition).
Petitioner also seeks to raise new claims in his current motion. When a motion for relief
from judgment in a habeas proceeding seeks to add a new ground for relief, whether similar to or
different from the claims raised in the first petition, the motion should generally be treated as a
second or successive petition. See Brooks v. Bobby, 660 F.3d 959, 962 (6th Cir. 2011).
When a habeas petitioner files what purports to be a motion to amend a habeas petition, a
federal court “must determine if it really is such a motion or if it is instead a second or successive
application for habeas relief in disguise.” Moreland v. Robinson, 813 F.3d 315, 322 (6th Cir.
2016). Petitioner is seeking in his motion to amend the habeas petition to supplement alreadylitigated claims with new arguments or evidence and also to raise new claims. All of these claims
are second or successive claims for habeas relief that this Court lacks jurisdiction to review in the
absence of authorization from the Sixth Circuit. Id. at 323. “A post-judgment motion to amend
or Rule 60(b) motion that raises habeas claims is a second or successive petition when that motion
is filed after the ‘petitioner has lost on the merits and exhausted her appellate remedies.’” Id.
(quoting Clark v. United States, 764 F.3d 653, 658 (6th Cir. 2014)). Petitioner already was denied
relief on his claims and has exhausted his appellate remedies with respect to this petition.
Petitioner’s motion is a successive petition for a writ of habeas corpus.
An individual seeking to file a second or successive habeas petition must first ask the
appropriate court of appeals for an order authorizing the district court to consider the petition. See
28 U.S.C. § 2244(b)(3)(A); Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). Under the
provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal district court
does not have jurisdiction to entertain a successive post-conviction motion or petition for a writ of

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habeas corpus in the absence of an order from the court of appeals authorizing the filing of such a
successive motion or petition. See Ferrazza v. Tessmer, 36 F. Supp. 2d 965, 971 (E.D. Mich.
1999). When a habeas petitioner files a second or successive petition for habeas corpus relief in
the district court without preauthorization from the court of appeals, the district court must transfer
the document to the court of appeals. See 28 U.S.C. § 1631 (directing that “[w]henever a civil
action is filed in a court . . . and that court finds that there is a want of jurisdiction, the court shall,
if it is in the interest of justice, transfer such action . . . to any other such court . . . in which the
action . . . could have been brought at the time it was filed”); In re Sims, 111 F.3d 45, 47 (6th
Cir.1997) (holding that “when a prisoner has sought § 2244(b)(3) permission from the district
court, or when a second or successive petition for habeas corpus relief or § 2255 motion is filed in
the district court without § 2244(b)(3) authorization from this court, the district court shall transfer
the document to this court pursuant to 28 U.S.C. § 1631”).
Petitioner argues that his current attempt to raise additional claims in his original habeas
petition should not be considered a successive petition within the meaning of § 2244(b)(3), because
this Court denied the first petition on procedural grounds. Although Petitioner would not have
been required to obtain a certificate of authorization following the dismissal of his petition if it had
been dismissed without prejudice on exhaustion grounds, see Harris v. Stovall, 22 F. Supp. 2d 659,
664 (E.D. Mich. 1998), this Court denied the petition with prejudice on the merits. Therefore, the
current motion is a successive habeas petition.
To the extent that Petitioner challenges the Sixth Circuit’s prior decisions to deny him
permission to file a successive habeas petition, this Court lacks the power to alter the Sixth
Circuit’s decision. A district court lacks the authority to reinstate a habeas petitioner’s second or

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successive petition for a writ of habeas corpus after the court of appeals declines to grant petitioner
leave to file such a petition. See White v. Carter, 27 F. App’x 312, 313–314 (6th Cir. 2001).
Finally, Petitioner filed a motion for an order to show cause, in which he claims that this
Court did not speedily adjudicate his Rule 60 motion. In light of the fact that the Court has now
ruled on his Rule 60 motion, the motion for an order to show cause (Dkt. 50) is denied as moot.
III. CONCLUSION
Petitioner’s Rule 60 motion seeking relief from judgment amounts to a successive habeas
petition. Accordingly, the Court orders the Clerk of the Court to transfer the Rule 60 motion
seeking relief from judgment and the motion for summary judgment or partial summary judgment
(Dkt. 47) to the Sixth Circuit pursuant to Sims and 28 U.S.C. § 1631. See Galka v. Caruso, 599
F. Supp. 2d 854, 857 (E.D. Mich. 2009).
The motion for an order to show cause (Dkt. 50) is denied as moot.
SO ORDERED.
Dated: January 30, 2024
Detroit, Michigan

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

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