Harper v. Palmer

Filing 19

OPINION AND ORDER reopening case and tranferring 18 Motion for relief from judgment to USCA for the Sixth Circuit. Signed by District Judge Judith E. Levy. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Willie Harper,
Petitioner,

Case No. 14-cv-13699
Judith E. Levy
United States District Judge

v.
Carmen Palmer,
Respondent.
________________________________/

OPINION AND ORDER REOPENING THE CASE TO THE
COURT’S ACTIVE DOCKET AND TRANSFERRING THE
MOTION FOR RELIEF FROM JUDGMENT [18] TO THE SIXTH
CIRCUIT COURT OF APPEALS
On June 29, 2017, the Court denied petitioner Willie Harper’s
amended pro se 28 U.S.C. § 2254 habeas corpus petition challenging his
conviction of three counts of assault with intent to murder, carrying a
concealed weapon, felon in possession of a firearm, and possession of a
firearm during the commission of a felony. (Dkt. 16.) The Court also
denied a certificate of appealability and leave to proceed on appeal in
forma pauperis. (Id.) Before the Court is petitioner’s pro se motion for

relief from judgment under Federal Rule of Civil Procedure 60(b). (Dkt.
18.)
Rule 60(b) permits a court to “relieve a party . . . from a final
judgment, order, or proceedings” under limited circumstances. Fed. R.
Civ. Pro. 60(b). The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) “did not expressly circumscribe the operation of Rule
60(b),” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005), but its “operation”
in § 2254 proceedings must be consistent with AEDPA, Franklin v.
Jenkins, 839 F.3d 465, 476 (6th Cir. 2016) (quoting Gonzalez, 545 U.S. at
529). And under 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). A second or successive habeas application is one
that presents a claim already “presented in a prior application” or a new
claim, unless the petitioner meets one of three exceptions. § 2244(b)(1)–
(2). A Rule 60(b) motion filed in a § 2254 action may be a second or
successive habeas petition. Gonzalez, 545 U.S. at 530–32.
A Rule 60(b) motion is a “second or successive” habeas application
if it puts forth “claims” with a “federal basis” that attack the merits of a
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state court conviction, Franklin, 839 F.3d at 473 (quoting Post v.
Bradshaw, 422 F.3d 419, 424 (6th Cir. 2005)), or “if it attacks the federal
court’s previous resolution of a claim on the merits,” Gonzalez, 545 U.S.
at 532 & n.4 (emphasis omitted). Cf. Franklin, 839 F.3d at 473 (quoting
Post, 422 F.3d at 424) (stating that procedural default, exhaustion, and
the statute of limitations bar are not determinations on the merits). In
other words, a petitioner may not use a Rule 60(b) motion to “amend to
try to raise new habeas claims [or] to supplement already litigated claims
with new evidence.” Moreland v. Robinson, 813 F.3d 315, 323 (6th Cir.
2016) (citing Gonzalez, 545 U.S. at 531–32).
Petitioner requests relief on his sentencing claim based on
Robinson v. Woods, 901 F.3d 710 (6th Cir. 2018). (Dkt. 18 at 2.) There,
the Sixth Circuit granted habeas relief on a challenge to Michigan’s
sentencing guidelines, holding that the Supreme Court’s decision in
Alleyne v. United States, 570 U.S. 99 (2013), clearly established that
Michigan’s mandatory minimum sentencing scheme permitting “judgefound facts to score mandatory sentencing guidelines that resulted in an
increase of petitioner’s minimum sentence violated petitioner’s Sixth
Amendment Rights.” Robinson, 901 F.3d at 716–18 (citing Alleyne, 570
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U.S. at 108). He also argues that Robinson creates debate among
reasonable jurists, requiring the Court to grant a certificate of
appealability. (Dkt. 18 at 3.) Petitioner’s motion advances claims that
were in his previous habeas petition, demonstrating it is a second or
successive habeas application.
In his habeas petition, he claimed that the state judge erred in
departing above the sentencing guidelines range, specifically that the
state judge violated his Sixth Amendment right to a jury trial by relying
on facts that were not submitted to a jury to score the offense variables
and calculate a sentencing guidelines range. Petitioner relied upon
Alleyne, which held that any fact that increases the mandatory minimum
sentence for a crime is an element of the criminal offense that must be
proven beyond a reasonable doubt, 570 U.S. at 103, and People v.
Lockridge, which held that Michigan’s mandatory sentencing guidelines
scheme violates the Sixth Amendment based on Alleyne, 498 Mich. 358
(2005). The Court denied relief, holding that Alleyne did not apply and
Lockridge was not clearly established federal law. (Dkt. 18 at 34–36.)
Here, petitioner offers Robinson to attack the Court’s determination that
he was not entitled to habeas relief because Lockridge was not clearly
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established law. This attacks the Court’s earlier determination of his
petition on the merits. Therefore, the motion raises a claim previously
litigated and is a second or successive habeas application. Petitioner
must obtain an order of authorization from the Sixth Circuit before he
can file it in this Court. § 2244(b)(3)(A).
Accordingly, the Clerk of the Court shall REOPEN the case to the
Court’s Active Docket and TRANSFER the Motion for Relief from
Judgment (Dkt. 18) to the Court of Appeals for the Sixth Circuit. 28
U.S.C. § 1631; see also Moreland, 813 F.3d at 325 (citing In Re Sims, 111
F.3d 45, 47 (6th Cir. 1997)).
IT IS SO ORDERED.
Dated: March 14, 2019
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
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 March 14, 2019.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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