Christian v. Hoffner
OPINION AND ORDER granting 36 Motion to rule on motion to amend, 39 Motion for immediate consideration, 33 Motion to amend the motion for relief from judgment, and 38 Motion to supplement authority, denying in part 30 , 33 Motion and amende d motion for relief from judgment, and transferring the motion and amended motion for relief from judgment and motion to supplement authority to the Sixth Circit of the Court of Appeals pursuant to 28 U.S.C. 2244(b)(3)(A), and denying 37 Motion for oral argument, and evidentiary heairng, and appointment of counsel without prejudice. Signed by District Judge Mark A. Goldsmith. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 13-cv-11491
HON. MARK A. GOLDSMITH
OPINION & ORDER
(1) GRANTING PETITIONER’S MOTIONS TO RULE ON MOTION TO AMEND (Dkt.
36), FOR IMMEDIATE CONSIDERATION (Dkt. 39), TO AMEND THE MOTION FOR
RELIEF FROM JUDGMENT (Dkt. 33), AND TO SUPPLEMENT AUTHORITY (Dkt.
38); (2) DENYING, IN PART, PETITIONER’S MOTION AND AMENDED MOTION
FOR RELIEF FROM JUDGMENT (Dkts. 30, 33); (3) TRANSFERRING THE MOTION
AND AMENDED MOTION FOR RELIEF FROM JUDGMENT, AND THE MOTION TO
SUPPLEMENT AUTHORITY (Dkts. 30, 33, 38) TO THE SIXTH CIRCUIT COURT OF
APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A); AND (4) DENYING
PETITIONER’S MOTION REQUESTING ORAL ARGUMENT, AN EVIDENTIARY
HEARING, AND THE APPOINTMENT OF COUNSEL (Dkt. 37) WITHOUT
This matter is before the Court on a number of Petitioner Kino Christian’s motions. On
October 20, 2015, Petitioner filed a motion for relief from judgment under Federal Rule of Civil
Procedure 60(b) (Dkt. 30). On October 27, 2015, this Court held this motion in abeyance
pending a decision from the U.S. Supreme Court on Petitioner’s request for a writ of certiorari.
10/27/2015 Order (Dkt. 32).
The Supreme Court has since denied a petition for writ of
certiorari. Christian v. Hoffner, 136 S. Ct. 1497 (2016).
Both Petitioner’s motion for relief from judgment and his amended motion for relief from
judgment (Dkt. 33) are now ripe for consideration. The Court grants Petitioner’s motion to
adjudicate these motions (Dkt. 36), as well as his related motion for immediate consideration
(Dkt. 39). The Court also grants petitioner’s motion to amend his motion for relief from
judgment (Dkt. 33) and the motion to supplement authority (Dkt. 38), because these motions add
additional arguments in support of Petitioner’s original motion for relief from judgment.
I. PROCEDURAL BACKGROUND
On November 12, 2014, this Court denied Petitioner’s petition for a writ of habeas
corpus, denied Petitioner’s motion for the appointment of counsel and for an evidentiary hearing,
declined to issue a certificate of appealability, but granted Petitioner leave to appeal in forma
pauperis. Christian v. Hoffner, No. 13-cv-11491, 2014 WL 5847600 (E.D. Mich. Nov. 12, 2014).
The Sixth Circuit subsequently denied Petitioner a certificate of appealability, affirmed this
Court’s denial of the petition for writ of habeas corpus, and dismissed the appeal. Christian v.
Hoffner, No. 14-2532 (6th Cir. May 6, 2015), reh’g denied, No. 14-2532 (6th Cir. July 13, 2015).
On March 28, 2016, the U.S. Supreme Court denied Petitioner a writ of certiorari.
II. STANDARD OF DECISION
A Rule 60(b) motion for relief from judgment that seeks to advance one or more
substantive claims following the denial of a habeas petition, such as a motion seeking leave to
present a claim that was omitted from the habeas petition due to mistake or excusable neglect, to
present newly discovered evidence not presented in the petition, or argue an alleged change in
the substantive law since the prior habeas petition was denied, should be classified as a “second
or successive habeas petition,” which requires authorization from the Court of Appeals before
filing, pursuant to the provisions of § 2244(b). 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. 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
Petitioner argues that the Court erred in ruling that his public trial claim was procedurally
defaulted. To the extent that Petitioner claims that this Court erred in finding his claim to be
procedurally defaulted, this would not amount to a successive challenge to his conviction,
because it would amount to an attack on the defect in the habeas proceedings. See, e.g., Franklin
v. Jenkins, 839 F.3d 465, 474 (6th Cir. 2016), cert. denied, 137 S. Ct. 2188 (2017). Petitioner’s
allegation that this Court erred in failing to conduct an evidentiary hearing likewise is not a
second or successive petition, because it does not seek to advance a substantive claim. See
Mitchell v. Rees, 261 F. App’x 825, 829 (6th Cir. 2008). Finally, Petitioner argues that this
Court ignored some of his arguments. A Rule 60(b) motion alleging that a district court failed to
adjudicate a petitioner’s claim does not constitute a second or successive petition because it, too,
merely challenges a defect in the proceedings. See Tyler v. Anderson, 749 F.3d 499, 508 (6th
A motion for relief from judgment that attacks the integrity of a previous habeas
proceeding, but is nevertheless without merit, should simply be denied, as would any other
motion for relief from judgment that lacks merit. See Harris v. United State, 367 F.3d 74, 82 (2d
A Rule 60(b) motion is properly denied where the movant attempts to use the
motion to re-litigate the merits of a claim and the allegations are unsubstantiated. See Miles v.
Straub, 90 F. App’x 456, 458 (6th Cir. 2004). A movant under Rule 60(b) similarly fails to
demonstrate entitlement to relief when he or she simply rephrases the prior allegations that were
contained in the original complaint. See Johnson v. Unknown Dellatifa, 357 F. 3d 539, 543 (6th
Cir. 2004). A habeas petitioner may not raise arguments during his or her initial federal habeas
proceeding, lose those arguments, then raise the same arguments based on the same evidence in a
Rule 60(b) motion for relief from judgment. See Brooks v. Bobby, 660 F.3d 959, 962 (6th Cir.
In both of his Rule 60(b) motions, Petitioner argues that this Court erred in finding his
public trial claim to be waived, procedurally defaulted, or unpreserved because, although
Petitioner did not object to the closure of the courtroom during voir dire, he did raise the claim in
a motion for a new trial. Petitioner argues that because he properly preserved this claim, this
Court should not have honored the procedural default.
Petitioner ignores the fact that the Michigan Court of Appeals, in procedurally defaulting
Petitioner’s claim, found the public trial claim to be procedurally defaulted, even though
Petitioner raised the claim in his motion for a new trial, because he did not preserve the issue by
objecting at trial:
Because neither defendant made a timely objection at trial on this
ground, this issue is not preserved for appeal. To properly
preserve an issue for appeal, a defendant must timely object, even
if the right asserted is constitutional in nature. Although defendant
Christian raised this issue in a motion for a new trial and again in a
motion for reconsideration of the trial court’s decision denying the
new trial motion, he does not challenge the trial court’s denial of
those decisions. Accordingly, our review is limited to determining
whether defendant Christian or defendant Hinton have established
a plain error affecting substantial rights
People v. Christian, No. 291578, 2011 WL 4424347, at *2 (Mich. Ct. App. Sept. 22, 2011)
Contrary to Petitioner’s assertion, raising the closed courtroom claim in his motion for a
new trial was insufficient to preserve the issue for appellate review under Michigan law, and,
therefore, the claim was procedurally defaulted.
Petitioner then argues that this Court erred in procedurally defaulting the public trial
claim because Respondent never raised a procedural default defense, thus waiving consideration
of such a defense. Procedural default is an affirmative defense that must be raised by the state at
the first possible opportunity, or it will be considered waived. Trest v. Cain, 522 U.S. 87, 89
(1997). Respondent, however, argued in the answer that Petitioner’s public trial claim was both
waived and procedurally defaulted because of Petitioner’s failure to object to the closure of the
courtroom. See Answer at 44-48, 51-53 (Dkt. 7). Thus, Petitioner’s argument is without merit.
Petitioner further claims that this Court erred in failing to conduct an evidentiary hearing
on his claim that counsel was ineffective for failing to object to the closure of the courtroom,
either as an excuse his procedural default and/or as an independent ground for relief.
When a federal court decides whether to conduct an evidentiary hearing, it must consider
whether such a hearing could enable the habeas petitioner to prove the petition’s factual
allegations, which, if true, would entitle the petitioner to federal habeas relief on his or her claim
or claims. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). If the record refutes the habeas
petitioner’s factual allegations, or otherwise precludes habeas relief, a district court is not
required to hold an evidentiary hearing. Id. Stated differently, a habeas petitioner is not entitled
to an evidentiary hearing on his or her claims if those claims lack merit. See Stanford v. Parker,
266 F.3d 442, 459-460 (6th Cir. 2001). This Court determined, at great length, that Petitioner’s
ineffective assistance of counsel claim was without merit, either to excuse the procedural default
of his public trial claim or as an independent ground for relief. Christian, 2014 WL 5847600, at
*7-13. Because Petitioner’s ineffective assistance of counsel claim was without merit, this Court
did not err in failing to conduct an evidentiary hearing.
Petitioner finally contends that this Court failed to discuss the fact that Petitioner’s public
trial claim was a structural error and, thus, failed to consider that prejudice on the underlying
ineffective assistance of counsel claim should be presumed. Petitioner’s allegation is baseless.
This Court discussed, and rejected, the idea that prejudice should be presumed on Petitioner’s
ineffective assistance of counsel claim because the underlying error involving the alleged closure
of the courtroom was structural. See id. at *10-13. Because this Court did, in fact, adjudicate
this claim, Petitioner is not entitled to relief from judgment.
Much of Petitioner’s remaining arguments in his Rule 60(b) motions challenge this
Court’s previous resolution of the merits of his public trial and ineffective assistance of counsel
claims. To the extent that Petitioner’s two Rule 60(b) motions seek to advance claims that the
Court previously considered and dismissed on substantive, constitutional grounds, the motions
constitute a second or successive habeas petition under 28 U.S.C. § 2244(b)(3)(A). See Post v.
Bradshaw, 422 F. 3d 419, 424-425 (6th Cir. 2005). Petitioner’s Rule 60(b) motions do not
merely attempt to rectify defects in the habeas corpus proceedings, but also reassert the
substance of Petitioner’s closed courtroom and ineffective assistance of counsel claims,
amounting to an impermissible attack on the Court’s previous resolution of the claims on the
merits. See Henderson v. Collins, 184 F. App’x. 518, 523 (6th Cir. 2006). Petitioner’s Rule
60(b) motions are, at least in part, the equivalent of a second or successive habeas petition,
because the motions seek to re-litigate claims that Petitioner previously raised in his prior habeas
petition. See In re Bowling, 422 F.3d 434, 440 (6th Cir. 2005). To the extent that Petitioner has
new evidence in support of these claims, Petitioner’s presentation of new evidence in support of
the previously denied claims constitutes a successive habeas petition, for
§ 2244(b)(3)(A). Id. at 439-440 (district court properly construed habeas petitioner’s Rule 60(b)
motion, which sought to introduce new evidence in support of his previously adjudicated
ineffective assistance of counsel claim, as a second or successive habeas petition). Petitioner’s
current Rule 60(b) motions are, in part, a second or successive petition for a writ of habeas
corpus, which requires Petitioner to obtain a certificate of authorization.
Accordingly, the Clerk of Court is ordered to transfer the motion for relief from
judgment, the amended motion for relief from judgment, and the related motion to supplement
authority to the U.S. Court of Appeals for the Sixth Circuit pursuant to In re Sims, 111 F.3d 45,
47 (6th Cir. 1997) and 28 U.S.C. § 1631. See Galka v. Caruso, 599 F. Supp. 2d 854, 857 (E.D.
Finally, Petitioner has filed a motion for oral argument, for an evidentiary hearing, and
for the appointment of counsel (Dkt. 37).
A district court loses jurisdiction over a state
prisoner’s habeas petition when it transfers it to court of appeals on the ground that it is a second
or successive petition. Jackson v. Sloan, 800 F. 3d 260, 261 (6th Cir. 2015). Thus, this Court
lacks jurisdiction pursuant to 28 U.S.C. §§ 1631, 2244(b)(3)(A) to consider Petitioner’s
remaining motion. Id. at 261-262.
For the reasons stated above, the Court grants Petitioner’s motions to rule on the motion
to amend (Dkt. 36) and for immediate consideration (Dkt. 39).
The Court further grants
Petitioner’s motions to amend the motion for relief from judgment (Dkt. 33) and to file
supplemental authority (Dkt. 38). The Court denies, in part, Petitioner’s motion and amended
motion for relief from judgment (Dkts. 30, 33). Petitioner’s motion for oral argument, for an
evidentiary hearing, and for the appointment of counsel (Dkt. 37) is denied without prejudice.
Pursuant to 28 U.S.C. § 1631, the Court orders the Clerk of the Court to transfer
Petitioner’s motion for relief from judgment, the amended motion for relief from judgment, and
the motion to supplement authority (Dkts. 30, 33, 38) to the U.S. Court of Appeals for the Sixth
Circuit for authorization to file a second or successive habeas petition, as required by 28 U.S.C.
Dated: July 28, 2017
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on July 28, 2017.
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