Creech v. Warden, Chillicothe Correctional Institution

Filing 85

REPORT AND RECOMMENDATIONS - Petitioner's Motion to Vacate should be dismissed for lack of jurisdiction. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a certificate of appea lability and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 2/17/2022. Signed by Magistrate Judge Michael R. Merz on 2/2/2022. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
SCOTT D. CREECH,
Petitioner,

:

- vs -

Case No. 1:15-cv-193
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATION

This habeas corpus case is before the Court on Petitioner’s Motion to Vacate Judgment for
Fraud upon the Court (ECF No. 84). Petitioner purports to bring the Motion pursuant to
Fed.R.Civ.P. 60(b)(6).
This Court entered final judgment dismissing Creech’s habeas corpus petition with
prejudice on August 13, 2020 (ECF No. 78). Creech attempted to appeal, but the Sixth Circuit
denied him a certificate of appealability. Creech v. Shoop, Case No. 20-3935 (6th Cir. Feb. 3,
2021)(unreported; copy at ECF No. 83). Creech now seeks to vacate the final judgments of both this
Court and the Sixth Circuit. A District Court is utterly without jurisdiction to alter in any way the
judgment of a circuit court of appeals. Therefore that portion of the Motion seeking to vacate the Sixth
Circuit’s denial of a certificate of appealability should be denied for lack of jurisdiction.

Fed.R.Civ.P. 60(b) provides
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding.
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On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule
59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Under Fed. R. Civ. P. 60(c), motions made under Fed. R. Civ. P. 60(b)(1), (2), or (3) must
be made within one year after the entry of the judgment or order or the date of the proceeding.
The one-year time limit on a 60(b) motion is jurisdictional. Arrieta v. Battaglia, 461 F.3d 861, 864
(7th Cir. 2006), cited with approval in Mitchell v. Rees II, 261 Fed. Appx. 825, 2008 U.S. App.
LEXIS 927 (6th Cir. 2008).

A litigant cannot evade the time limit on Fed.R.Civ.P. 60(b)(3)

motions to vacate for fraud on the court by relabeling it as made under Fed.R.Civ.P. 60(b)(6).
Because Creech seeks relief from what he labels as a fraud on the court, his Motion is
untimely and must be dismissed for lack of jurisdiction. Relief from judgment under Rule 60(b)(6)
is warranted only in exceptional or extraordinary circumstances not addressed by the other
numbered clauses of Rule 60. Johnson v. Dellatifa, 357 F.3d 539 (6th Cir. 2004); Hopper v. Euclid
Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989). Furthermore, this provision and
other provisions of Rule 60(b) are mutually exclusive; that is, if the reason offered for relief from
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judgment could be considered under one of the more specific clauses of Rule 60(b)(1)-(5), then
relief cannot be granted under Rule 60(b)(6). Abdur'Rahman v. Bell (In re Abdur'Rahman), 392
F.3d 174, 183 (6th Cir., 2004)(en banc)(vacated on other grounds, 545 U.S. 1151 (2005), citing
Liljeberg v. Health Svcs. Acquisition Corp., 486 U.S. 847, 863 & n.11 (1988).

Conclusion

Petitioner’s Motion to Vacate should be dismissed for lack of jurisdiction. Because
reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner
be denied a certificate of appealability and that the Court certify to the Sixth Circuit that any appeal
would be objectively frivolous and should not be permitted to proceed in forma pauperis.

February 2, 2022.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal.

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