Craig v. Mackie

Filing 25

OPINION AND ORDER denying in part and transferring in part 20 Motion for relief from judgment, denying 23 Motion for extension of time, granting 19 Application to proceed in forma pauperis on appeal, and denying a certificate of appealability. Signed by District Judge George Caram Steeh. (DPer)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KEVIN A. CRAIG, # 381110,
Petitioner,

Case Number: 2:17-CV-12830
HON. GEORGE CARAM STEEH

v.
THOMAS MACKIE,
Respondent.
/
OPINION AND ORDER
(1)

DENYING IN PART AND TRANSFERRING IN PART
PETITIONER’S MOTION FOR RELIEF FROM
JUDGMENT (ECF No. 20),

(2)

DENYING MOTION FOR EXTENSION OF TIME
(ECF No. 23),

(3)

GRANTING APPLICATION TO PROCEED IN
FORMA PAUPERIS ON APPEAL (ECF No. 19),
AND

(4)

DENYING A CERTIFICATE OF APPEALABILITY

On July 15, 2020, the Court denied Petitioner Kevin A. Craig’s
habeas corpus petition and denied a certificate of appealability. (ECF No.
16) Now before the Court are Petitioner’s Motion for Relief from Judgment
(ECF No. 20), Motion for Extension of Time to File Notice of Appeal (ECF
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No. 23), and Application to Proceed In Forma Pauperis on Appeal (ECF
No. 19). The Court denies in part Petitioner’s motion for relief from
judgment. The Court also transfers to the Sixth Circuit Court of Appeals
the remainder of the motion because the Court concludes it is a successive
petition pursuant to 28 U.S.C. § 2244(b)(3)(A). The Court denies
Petitioner’s Motion for Extension of Time and grants the Application to
Proceed In Forma Pauperis on Appeal.
I.

Discussion
A.

Motion for Relief from Judgment

In his habeas corpus petition, Petitioner challenged his convictions
for first-degree murder, assault with intent to murder, and possession of a
firearm during the commission of a felony. He raised three claims: (i) the
trial court abused its discretion in denying Petitioner’s motion for relief from
judgment; (ii) Petitioner’s right to a speedy trial was violated; and (iii) the
trial court abused its discretion in when it failed to address all claims raised
in Petitioner’s motion for relief from judgment. The Court denied the
petition. (ECF No. 16.) The Court also denied a certificate of appealability.
(Id.) Petitioner now seeks relief from judgment under Fed. R. Civ. P.
60(b)(1).

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As a threshold matter, the Court must decide whether it has
jurisdiction to consider Petitioner’s motion. Under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), a district court does not
have jurisdiction to consider a petitioner’s “second or successive” habeas
petition unless the petitioner first obtains authorization from the Court of
Appeals. 28 U.S.C. § 2244(b)(3)(A); Franklin v. Jenkins, 839 F.3d 465,
473 (6th Cir. 2016). Under some circumstances, a Rule 60(b) motion filed
in a § 2254 action may be subject to AEDPA’s restrictions on second or
successive habeas petitions. Gonzalez v. Crosby, 545 U.S. 524, 530-32
(2005). The Sixth Circuit explained the difference between a “true” Rule
60(b) motion and a “second or successive” habeas application “cloaked in
Rule 60(b) garb” as follows:
A petitioner’s Rule 60(b) motion is a “second or successive”
habeas application “when it ‘seeks vindication of’ or ‘advances’
one or more ‘claims.’” Post v. Bradshaw, 422 F.3d 419, 424
(6th Cir. 2005) (quoting Gonzalez, 545 U.S. at 531-32, 125 S.
Ct. 2641). A “claim,” in turn, “is ‘an asserted federal basis for
relief from a state court’s judgment of conviction.’” Ibid. (quoting
Gonzalez, 545 U.S. at 530, 125 S. Ct. 2641). For example, a
habeas petitioner’s Rule 60(b) motion advances claims “when
[the petitioner] seeks to add a new ground for relief or seeks to
present ‘new evidence in support of a claim already litigated.’”
Moreland, 813 F.3d at 322 (quoting Gonzalez, 545 U.S. at 531,
125 S. Ct. 2641). By contrast, a petitioner does not seek to
advance new claims “when [his] motion ‘merely asserts that a
previous ruling which precluded a merits determination was in
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error—for example, a denial for such reasons as failure to
exhaust, procedural default, or statute-of-limitations bar.’” Post,
422 F.3d at 424 (quoting Gonzalez, 545 U.S. at 532 n.4, 125 S.
Ct. 2641).
Franklin, 839 F.3d at 473.
Petitioner seeks relief from judgment on two grounds. First, he
argues that the Court erred in procedurally defaulting his claims and failing
to address the merits. Because this claim does not attack the substance of
the Court’s resolution of the claims on the merits, it is not a successive
challenge to his conviction. See Gonzalez, 545 U.S. at 532, n.4. The Court
has jurisdiction to decide this claim.
Relief under Rule 60(b)(1) may be granted where the Court's
judgment was the result of “mistake, inadvertence, surprise, or excusable
neglect.” Fed. R. Civ. P. 60(b)(1). Here, the basis for Petitioner’s
argument – that the Court failed to consider the merits of his claims based
upon procedural default – is incorrect. The Court chose to bypass the
procedural default question and proceeded directly to the merits of
Petitioner’s claims. (ECF No. 16, PageID.2320-21.) Petitioner is not
entitled to relief from judgment on this claim.
Second, Petitioner’s other asserted basis for relief from judgment –
that the Court erred in denying his speedy trial claim – constitutes a
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challenge to the Court’s merits determination. As such, it is a successive
habeas petition. Petitioner has not obtained appellate authorization to file
a second or successive habeas petition as required by 28 U.S.C. §
2244(b)(3)(A). The Court will transfer the motion to the Sixth Circuit Court
of Appeals for a determination whether he is authorized to file a successive
petition. See In Re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
B.

Motion for Extension of Time

Petitioner has filed a motion for extension of time to file a notice of
appeal, but an extension is unnecessary pursuant to Federal Rule of
Appellate Procedure 4(a)(4)(A)(vi). Petitioner filed a notice of appeal after
filing his motion for relief from judgment but before the Court ruled on the
motion. (ECF No. 21.) Where a notice of appeal is filed before the Court
decides a timely Rule 60(b) motion, “the notice becomes effective to
appeal a judgment or order, in whole or in part, when the order disposing
of the last such remaining motion is entered.” Id. Petitioner’s notice of
appeal, therefore, was timely filed.
C.

Application to Proceed In Forma Pauperis on Appeal

Also before the Court is Petitioner’s application to proceed in forma
pauperis on appeal. Federal Rule of Appellate Procedure 24(a)(1)

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provides that a party to a district-court action who desires to appeal in
forma pauperis must file a motion in the district court. An appeal may not
be taken in forma pauperis if the court determines that it is not taken in
good faith. 28 U.S.C. § 1915(a)(3). “[T]o determine that an appeal is in
good faith, a court need only find that a reasonable person could suppose
that the appeal has some merit.” Walker v. O’Brien, 216 F.3d 626, 631
(7th Cir. 2000). The Court finds that an appeal may be taken in good faith.
D.

Certificate of Appealability

A 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 district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
Petitioner fails to show that reasonable jurists would find the Court’s
decision denying relief from judgment to be debatable or wrong and the

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Court will deny a certificate of appealability.
II.

Conclusion
For the reasons stated, the Court:
(1) DENIES IN PART Petitioner’s Motion for Relief from
Judgment (ECF No. 20);
(2) ORDERS the Clerk of Court to transfer the Motion for
Relief from Judgment to the United States Court of Appeals for
the Sixth Circuit;
(3) DENIES a certificate of appealability;
(4) GRANTS Petitioner’s application to proceed in forma
pauperis on appeal (ECF No. 19); and
(5) DENIES Petitioner’s Motion for Extension of Time (ECF No.
23).

IT IS SO ORDERED.
Dated: January 29, 2021
s/George Caram Steeh
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 29, 2021, by electronic and/or ordinary mail and also on
Kevin A. Craig #381110, Saginaw Correctional Facility,
9625 Pierce Road, Freeland, MI 48623.
s/Brianna Sauve
Deputy Clerk

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