Lenoir v. Warden Southern Ohio Correctional Facility

Filing 91

REPORT AND RECOMMENDATION THAT PRO SE PETITIONERS MOTION FOR A CERTIFICATE OF APPEALABILITY TO APPEAL THE DENIAL OF HIS RULE 60(b) MOTION (DOC. 88 ) BE DENIED. Here, it is clearly established by the United States Supreme Court that a Fed. R. Civ. P. 60(b) motion such as Petitioners seeking leave to present newly discovered evidence in support of a claim previously denied must be treated as a second or successive habeas petition. Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005). Accordingly, P etitioner must have authorization by the Sixth Circuit pursuant to 28 U.S.C. 2244(b)(3) before this Court may consider Petitioners new claims. See id. As reasonable jurists would not disagree with this conclusion, it is RECOMMENDED that Petitioners motion for a certificate of appealability to appeal the denial of his Fed. R. Civ. P. 60(b) motion (doc. 88 ) be DENIED. Objections to R&R due by 11/19/2012. Signed by Magistrate Judge Michael J Newman on 11/02/2012. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LAMAR LENOIR,

:
Case No. 3:09-cv-286
Petitioner,
:

vs.
WARDEN, SOUTHERN OHIO
CORRECTIONAL FACILITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

:

Respondent.
:
______________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT
PRO SE PETITIONER’S MOTION FOR A CERTIFICATE OF APPEALABILITY TO
APPEAL THE DENIAL OF HIS RULE 60(b) MOTION (DOC. 88) BE DENIED
____________________________________________________________________________
This matter is before the Court upon pro se Petitioner’s motion for a certificate of
appealability to appeal the Court’s denial of his Fed. R. Civ. P. 60(b) motion (doc. 88). On March
30, 2012, the Court dismissed Petitioner’s 28 U.S.C. § 2254 habeas corpus petition. Doc. 64. In
a separate Order, the Court granted Petitioner a certificate of appealability with respect to Ground
Two, and denied certificates of appealability as to all other grounds for relief. See doc. 66 at
PageID 2276-77.
On May 25, 2012, Petitioner filed a motion for relief from judgment based on newly
discovered evidence pursuant to Fed. R. Civ. P. 60(b)(2). Doc. 72. In response to the Court’s
Order, Petitioner produced his alleged newly discovered evidence on June 27, 2012. See docs.
73, 75. Specifically, Petitioner produced a digital audio recording of a telephone conversation
between his sister, Jamisla Meaux, and Kirby Peterson (a witness in his criminal trial); a certified
transcript of that conversation; and two affidavits authenticating that recording and the transcript.
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Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.

See doc. 75. Petitioner claimed that this evidence was an “audio confession from the State’s
primary witness Kirby Peterson,” in support of his habeas claim in Ground One – that the
prosecutors knowingly suborned false testimony from Kirby Peterson. See doc. 72. The Court
listened to the audio recording, and read the transcript and affidavits, but disagreed that the
recording demonstrated that the prosecutors knowingly suborned false testimony from Kirby
Peterson during Petitioner’s criminal trial. See doc. 77.
The undersigned recommended that Petitioner’s motion be denied because it was, in
substance, a second or successive habeas petition. See doc. 77 at PageID 2325-27. See also
Smith v. Anderson, 402 F.3d 718, 723-25 (6th Cir. 2005). Thus, because Petitioner had not
obtained authorization from the Sixth Circuit to file a second or successive habeas petition
pursuant to 28 U.S.C. § 2244(b)(3), the undersigned recommended that the Court lacked
jurisdiction over his motion.2 See doc. 77 at PageID 2325-27. See also Smith, 402 F.3d at 723.
The District Judge, adopting the undersigned’s Report and Recommendation (doc. 77) in its
entirety, denied Petitioner’s Fed. R. Civ. P. 60(b) motion. Doc. 84.
Pursuant to 28 U.S.C. § 2253(c), a certificate of appealability is required for a habeas
petitioner to appeal the denial of his or her Fed. R. Civ. P. 60(b) motion to the Sixth Circuit. See
United States v. Hardin, 481 F.3d 924, 925-26 (6th Cir. 2007). “This is a separate procedural
hurdle from the authorization required under section 2244 to file a second or successive habeas
petition.” Id. (italics added). To obtain a certificate of appealability under 28 U.S.C. § 2253(c),
Petitioner must show that “reasonable jurists would find [the Court’s] assessment of [Petitioner’s]
constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or “the
issues presented are adequate to deserve encouragement to proceed further.”
2

Miller-El v.

Alternatively, the undersigned noted, in his Report and Recommendation, that Petitioner’s Rule 60(b)
motion should be denied even if the Court had jurisdiction because his first ground for relief was
procedurally barred, and his “newly presented evidence” did not support a claim of actual innocence to
excuse his procedural default. See doc. 77.

2

Cockrell, 537 U.S. 322, 327 (2003). In addition, for those claims dismissed on procedural
grounds, Petitioner must show that “jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack, 529 U.S. at 484. If the Court can resolve the
procedural issue first, it need not consider the constitutional issues. Id. at 484-85.
Here, it is clearly established by the United States Supreme Court that a Fed. R. Civ. P.
60(b) motion such as Petitioner’s – “seeking leave to present ‘newly discovered evidence’ … in
support of a claim previously denied” – must be treated as a second or successive habeas petition.
Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005).

Accordingly, Petitioner must have

authorization by the Sixth Circuit pursuant to 28 U.S.C. § 2244(b)(3) before this Court may
consider Petitioner’s new claims. See id. As reasonable jurists would not disagree with this
conclusion, it is RECOMMENDED that Petitioner’s motion for a certificate of appealability to
appeal the denial of his Fed. R. Civ. P. 60(b) motion (doc. 88) be DENIED.

s/ Michael J. Newman
United States Magistrate Judge

November 2, 2012

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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 Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to
SEVENTEEN days because this Report is being served by one of the methods of service listed in
Fed. R. Civ. P. 5(b)(2)(B)(C), or (D) and may be extended further by the Court on timely motion
for an extension. 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. If the Report and
Recommendation is based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. 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. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981);
Thomas v. Arn, 474 U.S. 140 (1985).

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