McGrath v. Clipper

Filing 96

Opinion and Order signed by Judge James S. Gwin on 10/3/14. The Court denies petitioner's motion for relief from judgment and reopening his case. The related motions are denied as moot. The Court certifies an appeal cannot be taken in good faith and no basis exists upon which to issue a certificate of appealability. (Related Docs. 86 , 91 , 94 , 95 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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JOSEPH MCGRATH,
:
:
Petitioner,
:
:
v.
:
:
BENNIE KELLY,
:
:
Respondent.
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:
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CASE NO. 1:11-CV-2023-JG

OPINION & ORDER
[Resolving Docs. 86, 91, 94, 95]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In April 2012, Petitioner Joseph McGrath filed an Amended Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254.1/ The Court denied McGrath’s Petition.2/ McGrath has moved three
times to reconsider the decision and reopen his case, which the Court and the Sixth Circuit have
denied.3/ Undeterred, McGrath moves a fourth time for reconsideration, now saying that Respondent
committed fraud by saying McGrath’s ninth claim for relief had been procedurally defaulted. The
Court DENIES McGrath’s motion.
The Court detailed the facts of this case in its prior opinions.4/ In May 2009, in two
consolidated cases, a Cuyahoga County jury found McGrath guilty of three counts of menacing by

1/

Doc. 9.
Doc. 61.
3/
Doc. 64; Doc. 70; Doc. 79; Doc. 84; Doc. 85. McGrath’s appeal from the Court’s denial of his third motion
is still pending in the Sixth Circuit. See Doc. 80.
4/
See, e.g., Doc. 60.
2/

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Case No. 1:11-CV-2023
Gwin, J.
stalking, two counts of violating a protection order, and one count of resisting arrest.5/ McGrath lost
his appeal to the Ohio Court of Appeals.6/ Subsequent appeals in Ohio courts were denied as
untimely, and those denials were the basis for the Court’s finding that most of the claims in his
habeas corpus petition—including ground nine, the only claim at issue in this motion—were
procedurally defaulted.7/
Rule 60(b) establishes that, upon motion, “the court may relieve a party or a party's legal
representative from a final judgment, order, or proceeding,” for six specific reasons.8/ Relevant here,
Rule 60(b)(1) allows for relief from judgment based on “mistake” and Rule 60(b)(3) allows for relief
from judgment for “fraud . . . , misrepresentation, or misconduct by an opposing party.”9/
McGrath says Respondent committed fraud by arguing in opposition to McGrath’s second
motion for reconsideration that McGrath had procedurally defaulted his ninth claim.10/ To obtain
relief from judgment under Rule 60(b)(3), fraud must be established by clear and convincing
evidence.11/ McGrath has not met this burden. In the opposition brief at issue, Respondent
summarized the procedural history that the Ohio Supreme Court had found McGrath’s claim was
untimely, and the Court thus found it procedurally defaulted.12/ This is a correct statement of the
background of the case. There was no misrepresentation by Respondent and absolutely no evidence
of any attempted fraud. Furthermore, the Court is familiar with the facts and procedural history of
McGrath’s claims having handled his appeals for three years, and any mistake by Respondent in
5/

Doc. 25 at 2.
Doc. 60 at 3-4.
7/
Id. at 3-4, 10-15.
8/
Fed. R. Civ. P. 60(b).
9/
Id.
10/
Doc. 86 at 2-3 (citing Doc. 66 at 2).
11/
E.g., Crehore v. United States, 253 F. App’x 547, 549-50 (6th Cir. 2007); see also Wright & Miller, 11 Fed.
Prac. & Proc. Civ. § 2860 (3d ed. 2014).
12/
See Doc. 65 at 2.
6/

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Case No. 1:11-CV-2023-JG
Gwin, J.
describing the background of the case would not have affected the Court’s decision.
In the alternative, McGrath argues that even without fraud by Respondent, the Court was
incorrect when it held McGrath’s ninth claim procedurally defaulted.13/ McGrath has already
litigated this issue, including taking an appeal to the Sixth Circuit, and has lost.14/ In rejecting his
successive habeas petition, the Sixth Circuit held that “[j]urists of reason would not debate the
dismissal of ground nine.”15/ McGrath presents no new facts or new developments in the law that
would change this conclusion. As such, there is no basis for relief from judgment based on mistake
under Rule 60(b)(1).
For the above reasons, McGrath’s motion for relief from judgment and reopening his case
is DENIED. McGrath’s related motions are DENIED as moot.16/
Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this
decision could not be taken in good faith, and no basis exists upon which to issue a certificate of
appealability.17/
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: October 3, 2014

13/

Doc. 86 at 3-4, 7-11.
See Doc. 84 at 3.
15/
Id.
16/
See Doc. 91 (motion for stay of sentence and bond pending resolution of motion for reconsideration and
reopening); Doc. 94 (motion for leave to supplement brief and reply to Respondent’s opposition to motion for stay of
sentence and bond); Doc. 95 (motion to supplement authorities cited in motion for reconsideration and reopening).
17/
28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
14/

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