Keith v. Palmer

Filing 19

ORDER transferring 17 Motion pursuant to Fed.R.Civ.P. Rule 60(b)(4) to USCA for the Sixth Circuit. Signed by District Judge Terrence G. Berg. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JERMAINE KEITH,
Petitioner,

Civil No. 14-13340
Honorable Terrence G. Berg

v.
CARMEN PALMER,
Respondent.
_______________________________/

ORDER TRANSFERRING PETITIONER’S MOTION PURSUANT TO
FED. R. CIV. P. RULE 60(b)(4) TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT (DKT. 17)
On March 31, 2015, the Court dismissed Michigan state prisoner Jermaine
Keith’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, because it
was not timely filed. The Court also denied a certificate of appealability. (Dkt. 10).
Petitioner filed an application for certificate of appealability in the Sixth Circuit
Court of Appeals. On September 29, 2015, the Court of Appeals denied the
application. (Dkt. 16). Now before the Court is Petitioner’s Motion Pursuant to
Fed. R. Civ. P. Rule 60(b)(4). For the reasons set forth below, the Court transfers
the motion to the Sixth Circuit Court of Appeals for consideration as an application
to file a second or successive 28 U.S.C. § 2254 petition. See 28 U.S.C. §§ 1631,
2244(b); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
Petitioner was convicted of assault with the intent to commit murder, four
counts of felonious assault, and possession of a firearm during the commission of a
felony in Wayne County Circuit Court. The Michigan Court of Appeals affirmed his

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convictions, People v. Keith, No. 278573, 2008 WL 2938787 (Mich. Ct. App. July 31,
2008), and the Michigan Supreme Court denied his application for leave to appeal.
People v. Keith, No. 137302, 482 Mich. 1701 (Mich. Nov. 25, 2008). Petitioner filed a
habeas petition on August 21, 2014. This Court granted the Respondent’s motion
for summary judgment, holding that the petition was untimely, that Petitioner was
not entitled to tolling of the limitations period, and that he had not shown a viable
claim of actual innocence. Petitioner has now filed a Rule 60(b)(4) motion for relief
from judgment, arguing that the state judgment of conviction was void for want of
jurisdiction because he was denied his Sixth Amendment right to counsel during his
appearance before a state magistrate judge for arraignment.
Rule 60(b) motions are subject to the restrictions that apply to “second or
successive” habeas corpus petitions if the movant asserts a claim of error in his
state conviction. Gonzalez v. Crosby, 545 U.S. 524, 538 (2005). In Gonzalez, the
Supreme Court explored the difference between a true Rule 60(b) motion and an
unauthorized second or successive habeas corpus petition. The Supreme Court
explained that an applicant presents a “claim” under 28 U.S.C. § 2244 if the motion
“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 [applicant] is, under the substantive
provisions of the statutes, entitled to habeas relief.” Id. at 532. By contrast, a true
Rule 60(b) motion, instead, “attacks, not the substance of the federal court’s
resolution of a claim on the merits, but some defect in the integrity of the federal

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habeas proceedings.” Id. Petitioner’s § 2254 petition did not challenge the state
trial court’s jurisdiction over his state criminal proceedings. Therefore, this claim
constitutes a new ground for relief that is subject to the gatekeeping requirements
of § 2244(b)(2). See id. at 530-32.
An individual seeking to file a second or successive habeas petition must first
ask the appropriate court of appeals from an order authorizing the district court to
consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Without advance
authorization, a district court in the Sixth Circuit must transfer the petition or
motion to the Sixth Circuit Court of Appeals. Sims, 111 F.3d at 47.
Accordingly, the Court ORDERS the Clerk of the Court to TRANSFER
Petitioner’s Motion Pursuant to Fed. R. Civ. P. Rule 60(b)(4) (Dkt. 17) to the United
States Court of Appeals for the Sixth Circuit as required by 28 U.S.C. §
2244(b)(3)(A) and In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
SO ORDERED.
Dated: July 18, 2016

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service

I hereby certify that this Order was electronically submitted on July 18,
2016, using the CM/ECF system; a copy of this Order was also mailed to the
Chippewa Correctional Facility, 4269 W. M-80, Kincheloe, MI 49784 directed to
Petitioner’s attention.
s/A. Chubb
Case Manager

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