Creech v. Warden, Chillicothe Correctional Institution

Filing 94

ORDER adopting the 85 February 3, 2022 Report and Recommendations (R&R) and 90 March 23, 2022 Supplemental R&R; denying 84 Petitioner's Motion to Vacate Judgment Pursuant to [Fed.R.Civ.P.] 60(b)(6) for Fraud Upon the Court; Because reasona ble jurists would agree that Petitioner is not entitled to relief pursuant to Rule 60(b) under these circumstances, the Court DENIES a certificate of appealability (COA) from this Order; with respect to any application by Petitioner to proceed on ap peal in forma pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of this Order adopting the R&R and Supplemental R&R would not be taken in good faith and, therefore, this Court denies petitioner leave to appeal in forma pauperis upon a showing of financial necessity. Signed by Judge Michael R. Barrett on 9/27/2022. (kkz)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:15-cv-00193-MRB-MRM Doc #: 94 Filed: 09/27/22 Page: 1 of 5 PAGEID #: 3377

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Scott D. Creech,
Petitioner,
v.
Warden, Chillicothe Correctional
Institution,

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

Respondent.
OPINION & ORDER
This matter is before the Court on the Magistrate Judge’s February 3, 2022
Report and Recommendations (“R&R”) (Doc. 85) and March 23, 2022 Supplemental
R&R (Doc. 90).
The parties were given proper notice under Rule 72(b) of the Federal Rules of
Civil Procedure, including notice that the parties would waive further appeal if they failed
to file objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d
947, 949-950 (6th Cir. 1981). Petitioner filed Objections to the R&R (Doc. 88) and the
Supplemental R&R (Doc. 93). 1
For the reasons stated below, the Court OVERRULES Petitioner’s Objections to
the Magistrate Judge’s February 3, 2022 R&R and March 23, 2022 Supplemental R&R.
I. BACKGROUND

1Petitioner

filed a Motion for Extension of Time to object to the Supplemental R&R.
(Doc. 91). Petitioner sought a ninety-day extension. The Magistrate Judge granted Petitioner’s
Motion, but only extended the deadline to file objections from April 6, 2022 to April 15, 2022.
(Doc. 92). Petitioner objects to the denial of the full ninety days he requested. Petitioner
explains that he has permanent brain and musculoskeletal injuries from an August 1999
motorcycle accident. While the Court is sympathetic to Petitioner’s situation, he has not
articulated a specific basis for this Court to find good cause for the ninety-day extension.

Case: 1:15-cv-00193-MRB-MRM Doc #: 94 Filed: 09/27/22 Page: 2 of 5 PAGEID #: 3378

The factual and procedural history of this case is set forth in the Magistrate
Judge’s February 3, 2022 R&R and March 23, 2022 Supplemental R&R, and the same
will not be repeated except to the extent necessary to address Petitioner’s objections.
The Magistrate Judge recommends denying Petitioner’s Motion to Vacate Judgment
Pursuant to [Fed.R.Civ.P.] 60(b)(6) for Fraud Upon the Court.
II. ANALYSIS
A. Standard of Review
This Court shall consider objections to a magistrate judge’s order on a
nondispositive matter and “shall modify or set aside any portion of the magistrate
judge’s order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a).
When objections to a magistrate judge’s report and recommendation are received on a
dispositive matter, the assigned district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3).

After review, the district judge “may accept, reject, or modify the

recommended decision; receive further evidence; or return the matter to the magistrate
judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
B. Motion to Vacate Judgment for Fraud upon the Court
Petitioner maintains that this Court’s August 13, 2020 judgment dismissing his
petition should be vacated under Federal Rule of Civil Procedure 60(b)(6) for “fraud on
the court.” (Doc. 84). The Magistrate Judge recommends denying Petitioner’s Motion
as untimely. The Magistrate Judge explains that motions to vacate for fraud on the
court under Federal Rule of Civil Procedure 60(b)(3) have a jurisdictional time limit of

2

Case: 1:15-cv-00193-MRB-MRM Doc #: 94 Filed: 09/27/22 Page: 3 of 5 PAGEID #: 3379

one year which cannot be evaded by bringing a “fraud on the court” claim under
60(b)(6). 2
In his objections, Petitioner argues that the Magistrate Judge mischaracterized
his motion as one under Rule 60(b)(3). Petitioner argues that the Magistrate Judge
should have instead analyzed his motion pursuant to Rule 60(d).

However, in the

Supplemental R&R, the Magistrate Judge analyzed Petitioner’s Motion under Rule 60(d)
and explained that in a habeas corpus case, in order to establish that relief is required
to prevent a grave miscarriage of justice, Petitioner must make a strong showing of
actual innocence. (Doc. 90, PAGEID 3360) (citing Calderon v. Thompson, 523 U.S.
538, 557-58 (1998) (holding that "avoiding a miscarriage of justice as defined by our
habeas corpus jurisprudence" requires "a strong showing of actual innocence")). The
Magistrate Judge concluded that Petitioner had not made such a showing.

The

Magistrate Judge also concluded that even if Petitioner’s Motion was decided under
Rule 60(b)(6), Petitioner has not demonstrated that there was a defect in the integrity of
the federal habeas proceedings.

The Magistrate Judge explained that the Court

properly denied Petitioner leave to amend his petition with his proposed claims of
ineffective assistance of counsel relating to his Fourth Amendment issues; and to the
extent Petitioner was raising a Fourth Amendment claim, it was barred under Stone v.
Powell, 428 U.S. 465 (1976).
In his objections to the Supplemental R&R, Petitioner explains that his Motion to
Vacate Judgment is properly analyzed under Rule 60(b)(6) because it is based upon
2As

the Magistrate Judge explained, a party seeking relief under any subsection of Rule
60(b) must show that the motion was filed “within a reasonable time−and for reasons (1), (2),
and (3) no more than a year after the entry of the judgment or order or the date of the
proceeding.” Fed. R. Civ. P. 60(c)(1). Petitioner does not dispute that if his motion were
considered under Rule 60(b)(3) it would not be timely filed.
3

Case: 1:15-cv-00193-MRB-MRM Doc #: 94 Filed: 09/27/22 Page: 4 of 5 PAGEID #: 3380

ineffective assistance of counsel.

Petitioner explains he has demonstrated

extraordinary circumstances which warrant relief because he has never had effective
assistance of counsel at any stage of the proceedings.
Federal Rule of Civil Procedure 60(b)(6) provides for relief from a final judgment
for “any other reason that justifies relief.”

However, Rule 60(b)(6) applies “only in

exceptional or extraordinary circumstances.” Franklin v. Jenkins, 839 F.3d 465, 472
(6th Cir. 2016).

Moreover, as the Sixth Circuit has explained, “[e]xtraordinary

circumstances within the meaning of Rule 60(b)(6) are a rarity in habeas cases.”
Sheppard v. Robinson, 807 F.3d 815, 821 (6th Cir. 2015) (citing Gonzalez v. Crosby,
545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)). Here, the Court finds no
error in the Magistrate Judge’s conclusion that Petitioner has not presented evidence of
“exceptional or extraordinary circumstances” which would justify relief from the Court's
judgment under Rule 60(b)(6).

Therefore, even if the Court were to construe

Petitioner’s motion as one filed under Rule 60(b)(6), his motion would nevertheless fail
for the reasons stated by the Magistrate Judge.
III. CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1. The Magistrate Judge’s February 3, 2022 Report and Recommendations (“R&R”)
(Doc. 85) and March 23, 2022 Supplemental R&R (Doc. 90) are ADOPTED;
2. Petitioner’s Motion to Vacate Judgment Pursuant to [Fed.R.Civ.P.] 60(b)(6) for
Fraud Upon the Court (Doc. 84) is DENIED;
3. Because reasonable jurists would agree that Petitioner is not entitled to relief
pursuant to Rule 60(b) under these circumstances, the Court DENIES a
certificate of appealability (“COA”) from this Order. See Slack v. McDaniel, 529
U.S. 473, 484 (2000) (holding COA should issue only where reasonable jurists
would find it “debatable whether the petition states a valid claim for the denial of
a constitutional right” and would “find it debatable whether the district court was

4

Case: 1:15-cv-00193-MRB-MRM Doc #: 94 Filed: 09/27/22 Page: 5 of 5 PAGEID #: 3381

correct in its procedural ruling”); United States v. Hardin, 481 F.3d 924, 926 (6th
Cir. 2007) (requiring COA to appeal denial of Rule 60(b) motion);
4. With respect to any application by Petitioner to proceed on appeal in forma
pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of
this Order adopting the R&R and Supplemental R&R would not be taken in “good
faith” and, therefore, this Court DENIES petitioner leave to appeal in forma
pauperis upon a showing of financial necessity. See Fed. R. App. P. 24(a);
Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997); and
5. This matter shall remain CLOSED.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

5