In The Supreme Court of the United...

No. _________

================================================================

In The

Supreme Court of the United States --------------------------------- ♦ ---------------------------------

CLARENCE MOORE,

Petitioner,

v.

RAYMOND BOOKER, WARDEN,

Respondent.

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On Petition For Writ Of Certiorari To The United States Court Of Appeals

For The Sixth Circuit

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PETITION FOR A WRIT OF CERTIORARI

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CHRISTOPHER J. MCGRATH Counsel of Record 503 South Saginaw Street Suite 939 Flint, Michigan 48502 (810) 238-8540 [email protected]

Attorney for Petitioner

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

QUESTION PRESENTED

Whether a district court has jurisdiction to deny a Rule 60(b) motion while an appeal is pending.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................... i

TABLE OF CONTENTS ......................................... ii

TABLE OF AUTHORITIES ................................... iv

PETITION FOR A WRIT OF CERTIORARI ......... 1

OPINIONS BELOW ............................................... 1

JURISDICTION ..................................................... 1

RULES INVOLVED ............................................... 1

STATEMENT OF THE CASE ................................ 4

REASONS FOR GRANTING THE PETITION ..... 14

CONCLUSION ....................................................... 19

APPENDIX

Court of Appeals’ Order in Case Number 09-2479 .................................................................. App. 1

Court of Appeals’ Order in Case Number 09-1089 .................................................................. App. 5

District Court’s Order Denying Motion for Re-lief from Judgment ........................................... App. 9

Court of Appeals’ Order Withdrawing Show Cause Order ................................................... App. 13

Court of Appeals’ Show Cause Order ................ App. 15

District Court’s Order Denying Motion for Re-consideration or for a Certificate of Appeal-ability .............................................................. App. 17

iii

TABLE OF CONTENTS – Continued

Page

District Court’s Opinion and Order Granting Motion for Summary Judgment .................... App. 22

Court of Appeals’ Order Denying Rehearing .... App. 30

Court of Appeals’ Order Denying Rehearing En Banc ................................................................ App. 32

iv

TABLE OF AUTHORITIES

Page

CASES:

Aldrich Enter., Inc. v. United States, 938 F.2d 1134 (10th Cir. 1991) ............................................... 16

Boyko v. Anderson, 185 F.3d 672 (7th Cir. 1999) ....... 17

Brown v. United States, 976 F.2d 1104 (7th Cir. 1992) ........................................................................ 16

Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39 (1st Cir. 1979) ................. 16

Fobian v. Storage Technology Corp., 164 F.3d 887 (4th Cir. 1999) ...................................... 16, 17, 18

Gonzalez v. Crosby, 545 U.S. 524 (2005) .................... 14

Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam) ............................. 14

Holland v. Florida, 130 S.Ct. 2549 (2010) ................. 13

Hyle v. Doctor’s Assoc., Inc., 198 F.3d 368 (2d Cir. 1999) ................................................................. 16

Lopez Dominguez v. Gulf Coast Marine & Assoc., Inc., 607 F.3d 1066 (5th Cir. 2010) ............. 18

Mahone v. Ray, 326 F.3d 1176 (11th Cir. 2003) ......... 16

People v. Boylston, 2000 WL 33407435 (Mich. App.) (unpublished) .................................................. 6

People v. Moore, 2001 WL 1480718 (Mich. App.) (unpublished) .................................................... 4, 5, 7

People v. Moore, 470 Mich. 56 (2004) ........................... 7

Pittock v. Otis Elevator Co., 8 F.3d 325 (6th Cir. 1993) ........................................................................ 16

v

TABLE OF AUTHORITIES – Continued

Page

Scott v. Younger, 739 F.2d 1464 (9th Cir. 1984) ......... 16

Stone v. INS, 514 U.S. 386 (1995) .............................. 18

United States v. Contents of Accounts Nos. 3034504504 and 144-07143, 971 F.2d 974 (3d Cir. 1992) ................................................................. 16

United States v. Cronic, 466 U.S. 648 (1984) ............. 17

Winchester v. United States Attorney for the Southern District of Texas, 68 F.3d 947 (5th Cir. 1995) ................................................................. 16

Winter v. Cerro Gordo Co. Conservation Bd., 925 F.2d 1069 (8th Cir. 1991) ................................. 16

RULES AND STATUTES:

Fed. R. Civ. P. 60 ................................................. passim

Fed. R. Civ. P. 62.1 .................................................. 3, 18

Fed. R. Crim P. 33 ....................................................... 17

28 U.S.C. § 1254 ........................................................... 1

OTHER AUTHORITIES:

C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE (2d ed. 1995) ................................... 14, 18

J. Moore, MOORE’S FEDERAL PRACTICE (3d ed. 1998) ........................................................................ 18

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Clarence Moore respectfully petitions for a writ of certiorari to the United States Court of Appeals for the Sixth Circuit in Moore v. Harry, No. 09-2479.

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OPINIONS BELOW

The district court’s order denying petitioner’s motion for relief from judgment (App. 9-12) is un-published. The court of appeals’ order denying peti-tioner’s motion for a certificate of appealability (App. 1-4) is unpublished.

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JURISDICTION

The court of appeals’ order denying rehearing en banc (App. 32) was entered on September 16, 2011. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

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RULES INVOLVED

Fed. R. Civ. P. 60 provides:

(a) CORRECTIONS BASED ON CLERICAL MIS-

TAKES; OVERSIGHTS AND OMISSIONS. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other

2

part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave.

(b) GROUNDS FOR RELIEF FROM A FINAL JUDG-MENT, ORDER, OR PROCEEDING. On motion and just terms, the court may relieve a party or its legal representative from a final judg-ment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or ex-cusable 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 intrin-sic or extrinsic), misrepresentation, or mis-conduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judg-ment that has been reversed or vacated; or applying it prospectively is no longer equita-ble; or

(6) any other reason that justifies relief.

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(c) TIMING AND EFFECT OF THE MOTION.

(1) Timing. A motion under Rule 60(b) must be made 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.

(2) Effect on Finality. The motion does not affect the judgment’s finality or suspend its operation.

(d) OTHER POWERS TO GRANT RELIEF. This rule does not limit a court’s power to:

(1) entertain an independent action to re-lieve a party from a judgment, order, or pro-ceeding;

(2) grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of the action; or

(3) set aside a judgment for fraud on the court.

(e) BILLS AND WRITS ABOLISHED. The follow-ing are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela.

Fed. R. Civ. P. 62.1 provides:

(a) RELIEF PENDING APPEAL. If a timely mo-tion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:

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(1) defer considering the motion;

(2) deny the motion; or

(3) state either that it would grant the mo-tion if the court of appeals remands for that purpose or that the motion raises a substan-tial issue.

(b) NOTICE TO THE COURT OF APPEALS. The movant must promptly notify the circuit clerk under Federal Rule of Appellate Proce-dure 12.1 if the district court states that it would grant the motion or that the motion raises a substantial issue.

(c) REMAND. The district court may decide the motion if the court of appeals remands for that purpose.

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STATEMENT OF THE CASE

On August 8, 1997, DeJuan Boylston shot Jacky Hamilton while he was fishing with his brother, Johnny Hamilton, at Thread Lake in Flint, Michigan. Petitioner Clarence Moore was accused of instigating the shooting. According to Johnny Hamilton, Boylston and a taller individual approached while he and his brother were fishing from a dock. The taller person allegedly urged Boylston to shoot the brothers, at one point saying, “Give me the gun, I’ll do it, I’ll do it.” People v. Moore, 2001 WL 1480718, *1 (Mich. App.) (unpublished). Boylston and Johnny Hamilton recog-nized each other from the neighborhood, though, and

5

Boylston decided not to do anything. As they walked away from the dock, the taller individual allegedly berated Boylston by calling him names and question-ing his masculinity. Boylston turned around and fired several shots. One of the bullets hit Jacky Hamilton in the chest. He collapsed and later died.

Police suspected that petitioner was the taller man accompanying Boylston, but Johnny Hamilton never got close enough to identify him. Moore, 2001 WL 1480718, *2. Nor could any other witness identify him in a lineup. He was detained and questioned by Sergeant Scott Eddy of the Flint Police Department. Sergeant Eddy claimed that, after initially denying any involvement in the shooting, petitioner admitted that he went to Thread Lake with an individual named “Juan.” Eddy alleged that petitioner acknowl-edged that he grabbed the gun in order to stop Juan from shooting at the men on the dock. His statements to Sergeant Eddy were the only pieces of evidence linking him to the murder. Ibid.

Petitioner was ultimately charged with aiding and abetting Boylston in the murder. At the conclu-sion of his preliminary examination, the state district court judge ruled that the prosecutor did not present sufficient evidence to establish probable cause, and refused to bind the matter over for trial. The state appealed the ruling to the Genesee County Circuit Court, and the charges were reinstated. A jury later convicted petitioner of aiding and abetting in the commission of murder in the first degree, aiding and abetting in the commission of assault with intent to

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murder, and aiding and abetting in the possession of a firearm during the commission of a felony. He was sentenced to life imprisonment with no possibility of parole for the murder conviction; fifteen to thirty years for the assault conviction; and a consecutive two-year term for the felony-firearm conviction. Boylston was tried separately, convicted of second-degree mur-der, and sentenced to twenty to forty years. People v. Boylston, 2000 WL 33407435, *1 (Mich. App.) (un-published).

Petitioner appealed as of right to the Michigan Court of Appeals. He raised a number of claims. First, he contended that the trial court denied him a fair trial by permitting the prosecutor to argue that Ser-geant Eddy’s notes from the interview were sufficient evidence of his purported statement, even though the notes were not admitted into evidence. Second, he asserted that the trial court denied him the right to present a defense by refusing to permit him to ques-tion Sergeant Eddy about the timing of the state’s decision to charge him. Third, he argued that the trial court erred in not granting his motion for a directed verdict as to the felony-firearm and murder charges. Fourth, he maintained that the trial court had no basis for reinstating his charges after the district court judge refused to bind the matter over for trial. Fifth, he claimed that the trial court erroneously re-jected his argument that the array of prospective jurors was not representative of a fair cross-section of the community. His sixth and final argument was that the trial court erred in instructing the jury that

7

he was charged with first-degree premeditated mur-der even though he was actually charged with open murder. In an unpublished opinion, the Michigan Court of Appeals rejected each claim of error, and affirmed his conviction and sentence. Moore, 2001 WL 1480718.

He then sought leave to appeal in the Michigan Supreme Court. Leave was granted, but only as to the issue of whether the trial court erred in denying his motion for a directed verdict in connection with the felony-firearm charge. Resolution of the question turned on whether the state was required to establish that petitioner aided and abetted Boylston in “obtain-ing or retaining” the firearm used to shoot Jacky Hamilton. People v. Moore, 470 Mich. 56, 61 (2004). By a 4-3 margin, the Michigan Supreme Court con-cluded that the language of the felony-firearm statute encompasses a charge based on an aiding and abet-ting theory, so long as the defendant assists another in “carrying or having in his possession a firearm while that other commits or attempts to commit a felony.” Id., at 68. Here, the court reasoned, by pur-portedly inciting a hesitant Boylston to use the gun that he was carrying, petitioner induced Boylston to possess the gun. Id., at 72.

After the conclusion of direct review, petitioner filed a motion for relief from judgment in the Genesee County Circuit Court. The motion’s first claim chal-lenged whether petitioner could be convicted under an aiding and abetting theory of premeditated mur-der given that the principal, Boylston, was only

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convicted of second-degree murder. The second and third claims reasserted the right to present a defense and fair cross-section arguments that had been raised on direct appeal. The fourth claim maintained that petitioner’s trial was tainted by prosecutorial miscon-duct. In an opinion and order, the court concluded that he was not entitled to relief.

Petitioner did not appeal the denial of the motion for relief from judgment. Instead, he filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The petition set forth two claims. First, petitioner asserted that his right to confront and cross-examine the witnesses against him was violated when the trial court refused to let his attorney question Sergeant Eddy about whether he was biased. He argued that bias could have been established had counsel been permitted to ask Eddy why charges were brought only after he refused to provide testimony implicating Boylston in the shooting. The second claim challenged the composition of his venire. Citing 2006 census data, petitioner noted that the population of Genesee County was approximately 19.9% African American. He contended that the fact that only a single person in the entire eighty-eight member venire was African American showed that the prospective jurors in pe-titioner’s case did not represent a fair cross-section of the community.

The state filed a motion for summary judgment claiming that the habeas petition was filed outside the one-year period of limitation. The state emphasized

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that, although the Michigan Supreme Court affirmed petitioner’s conviction and sentence on May 12, 2004, petitioner did not file his motion for relief from judg-ment in state court until June 29, 2007. Petitioner responded to the motion for summary judgment by contending that the statute of limitations was subject to equitable tolling. It was appropriate to equitably toll the statute, he argued, because: (1) his attorney on direct review had given him bad advice; (2) he was diligent insofar as he appealed his case to the Michi-gan Court of Appeals, sought and was granted leave to appeal in the Michigan Supreme Court, and pur-sued collateral review in the Genesee County Circuit Court; (3) he was ignorant of the law, and did not have an attorney between 2004 and 2007; (4) re-spondent would not be prejudiced by the district court entertaining the petition on the merits; and (5) re-view on the merits was appropriate in light of the issues raised in the petition, and in light of his actual innocence. The district court entered an opinion and order rejecting petitioner’s request for equitable toll-ing, granting the state’s motion for summary judg-ment, and dismissing the case. (App. 22-29).

Petitioner filed a motion for reconsideration or for a certificate of appealability. He sought recon-sideration on the premise that, had an evidentiary hearing regarding the request for equitable tolling been conducted, the district court would have reached a different result. The motion for a certificate of ap-pealability sought permission to appeal both the de-nial of equitable tolling and the refusal to grant relief

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based on the pair of claims raised in the habeas pe-tition. The district court later entered an order deny-ing reconsideration and denying the request for a certificate of appealability. (App. 17-21).

A notice of appeal was then filed in the United States Court of Appeals for the Sixth Circuit, and the appeal was docketed as case number 09-1089. There-after, the court of appeals entered an order directing petitioner to show cause why the appeal should not be dismissed for want of jurisdiction due to the untimely filing of the notice of appeal. (App. 15-16). The motion for reconsideration or for a certificate of appealability had not been filed within ten days after entry of the district court’s opinion and order granting respon-dent’s motion for summary judgment, and the notice of appeal had not been filed until sixteen days after the district court denied the motion for reconsidera-tion or for a certificate of appealability. Petitioner filed a response to the show cause order arguing that the motion for reconsideration should be construed as a motion for relief from judgment under Fed. R. Civ. P. 60(b). The court of appeals then entered an order permitting the district court’s order denying reconsid-eration to be treated as the denial of a Rule 60(b) motion for relief from judgment. (App. 13-14). The notice of appeal was deemed timely because it was filed within thirty days after entry of the district court’s order denying reconsideration.

While the case was pending in the Sixth Circuit, petitioner’s attorney filed a motion seeking to withdraw on the basis of a breakdown in the attorney-client

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relationship. The court of appeals entered an order permitting counsel to withdraw, and granting pe-titioner additional time to retain new counsel. With the assistance of new counsel, petitioner filed a Rule 60(b) motion for relief from judgment in the district court. The motion asserted that predecessor counsel made fraudulent misrepresentations to the district court about the circumstances surrounding the de- lay in initiating the collateral review process, that counsel’s misrepresentations warranted re-opening the case, and that his actions amounted to attorney misconduct of a sufficient degree to justify equitable tolling of the statute of limitations.

Predecessor counsel had written in petitioner’s response to the state’s motion for summary judgment that petitioner “was not represented by counsel from the time his application for leave to appeal was de-nied (in 2004) until the time his current counsel filed a Motion for a New Trial (in 2007).” (R 6: Response to Motion for Summary Judgment, pg. 4). However, in his Rule 60(b) motion for relief from judgment, peti-tioner submitted evidence showing that his parents hired predecessor counsel in late 2003 to represent him in post-conviction proceedings. (R 14: Motion for Relief from Judgment, Attachment A: Affidavit of Hattie Moore, ¶7). They paid counsel $15,000.00 in November 2003, and another $15,000.00 in June 2004. (Id., Attachment B: Affidavit of James P. Moore, ¶7). Petitioner’s parents kept copies of the checks that were given to predecessor counsel. (Id., Attach-ment C: Cashier’s Checks). In a letter dated March

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25, 2004, counsel indicated that he was “making progress” in the case. (Id., Attachment D: Letter to James P. Moore). Later, when petitioner’s mother ex-pressed concern over the time it was taking to pursue collateral review, a member of counsel’s staff assured her that “there is such a thing as getting an extension from the courts.” (Id., Attachment A: Affidavit of Hattie Moore, ¶10).

The district court denied the motion for relief from judgment. The court asserted at the outset that it lacked jurisdiction to decide the motion because, upon the filing of case number 09-1089, jurisdiction transferred to the court of appeals. (App. 10). Going a step further, the court opined that predecessor coun-sel’s failure to properly take action once petitioner’s conviction became final was not a basis for equitable tolling of the statute of limitations. (App. 11). The court noted that, in addition, there was no evidence that counsel’s misconduct prevented petitioner from filing his own habeas petition. (App. 12).

The same day the district court denied the mo-tion for relief from judgment, petitioner filed a motion for a certificate of appealability in the court of ap-peals relating to the judgment challenged in case number 09-1089. He later filed a notice of appeal relating to the district court’s denial of his Rule 60(b) motion. That appeal was docketed as case number 09-2479. He moved for a certificate of appealability in that case as well. In each motion, petitioner asked the court of appeals to consider whether attorney mis-conduct that exceeds ordinary negligence can justify

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equitable tolling of the statute of limitations, and whether counsel’s misrepresentations to the district court entitle him to relief from judgment. The court of appeals consolidated the cases. Subsequently, in an order relating to case number 09-1089, the court de-nied petitioner a certificate of appealability on the ground that the motion for reconsideration filed in the district court did not identify any factual or legal basis justifying reconsideration of the dismissal of the habeas petition. (App. 7-8). Contemporaneously, in an order relating to case number 09-2479, the court con-cluded that the district court was correct in holding that it lacked jurisdiction to consider petitioner’s motion for relief from judgment. (App. 3). The court of appeals did not address the merits of the Rule 60(b) motion.

Petitioner sought rehearing or rehearing en banc in case number 09-2479. He asserted that “[t]here is a clearly defined split of authority regarding the ques-tion of whether a district court has jurisdiction to deny, though not grant, a Rule 60(b) motion while an appeal is pending.” (Petition for Rehearing or Rehear-ing En Banc, pg. 1). He also noted that this Court recently held that attorney misconduct which exceeds ordinary excusable neglect can serve as a basis for tolling the statute of limitations. (Id., pg. 13) (citing Holland v. Florida, 130 S.Ct. 2549, 2564 (2010)). Given the fact-intensive nature of the inquiry, he ar-gued, the district court should have conducted an evidentiary hearing before concluding that petitioner is not entitled to equitable tolling. (Id., pg. 14). A panel

14

denied rehearing. (App. 30-31). The court of appeals declined to rehear the matter en banc. (App. 32).

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REASONS FOR GRANTING THE PETITION

Rule 60(b) permits a party to seek relief from a final judgment and request reopening of his case. Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). A proper Rule 60(b) motion in a habeas case “attacks, not the substance of the federal court’s resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.” Id., at 532. The time for moving for relief from judgment is limited, and con-tinues to run while a case is on appeal. C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 2873 (2d ed. 1995) (Wright and Miller). At the same time, “[t]he filing of a notice of appeal is an event of juris-dictional significance – it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam). These competing concerns sometimes complicate things for a habeas applicant who, while his case is pending on appeal, wishes to bring to the district court’s attention a defect in the integrity of the proceedings. Rule 60(b) encourages an applicant to bring a motion for relief from judgment as soon as possible, but the fact that jurisdiction has transferred to the court of appeals may cause the district court to be reluctant to disturb the underlying judgment.

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When a district court grants a motion for relief from judgment under Rule 60(b), it must neces-sarily vacate the underlying judgment and reopen the record. If a district court were to do this while the judgment in question is being appealed, two courts would be exercising jurisdiction over the same matter at the same time. Since dual jurisdiction is disfa-vored, courts are in agreement that, if a district court is disposed to grant a Rule 60(b) motion pending appeal, the court should enter an order so indicating and the moving party may then file a motion to remand in the court of appeals. Most courts hold, though, that a district court does have jurisdiction to deny a Rule 60(b) motion pending appeal. The denial does not conflict with the appeal because it does not disturb the underlying judgment.

In this case, the district court concluded that it lacked jurisdiction to even deny petitioner’s Rule 60(b) motion because, upon the filing of case number 09-1089, jurisdiction transferred to the court of ap-peals. (App. 10). Subsequently, the court of appeals denied petitioner a certificate of appealability in case number 09-2479 on the ground that he had not shown that jurists of reason could debate whether the dis-trict court lacked jurisdiction to deny the Rule 60(b) motion. (App. 3). Petitioner asserts that the district court did, in fact, have the authority to deny his Rule 60(b) motion. The court of appeals erred, therefore, when it denied him a certificate of appealability in case number 09-2479 without considering whether

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the merits of his Rule 60(b) motion could be debated by jurists of reason.

Certiorari review is warranted because the ques-tion of whether a district court has jurisdiction to deny a Rule 60(b) motion pending appeal has divided the lower courts. The Sixth and Ninth Circuits have concluded that an appeal divests a district court of all jurisdiction to entertain a Rule 60(b) motion. See Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir. 1993); Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). The majority rule, however, is that a district court may entertain a Rule 60(b) motion pending appeal and either deny the motion on its merits, or certify its intention to grant the motion to the court of appeals, which could then entertain a motion to remand the case. See Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39, 41-42 (1st Cir. 1979); Hyle v. Doctor’s Assoc., Inc., 198 F.3d 368, 372 n.2 (2d Cir. 1999); United States v. Contents of Accounts Nos. 3034504504 and 144-07143, 971 F.2d 974, 988 (3d Cir. 1992); Fobian v. Storage Technology Corp., 164 F.3d 887, 890-91 (4th Cir. 1999); Winchester v. United States Attorney for the Southern District of Texas, 68 F.3d 947, 949 (5th Cir. 1995); Brown v. United States, 976 F.2d 1104, 1110-11 (7th Cir. 1992); Winter v. Cerro Gordo Co. Conservation Bd., 925 F.2d 1069, 1073 (8th Cir. 1991); Aldrich Enter., Inc. v. United States, 938 F.2d 1134, 1143 (10th Cir. 1991); Mahone v. Ray, 326 F.3d 1176, 1180 (11th Cir. 2003).

Several courts have discussed the split. The Fourth Circuit, for example, has noted that a minority of the

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Circuits follow the “alternative approach,” but has itself chosen to adhere to the majority rule. Fobian, 164 F.3d at 892. The Fobian court pointed out that the majority rule promotes efficiency in deciding cases because “[s]wift denial of a Rule 60(b) motion permits an appeal from that denial to be consolidated with the underlying appeal.” Id., at 890. Likewise, the Seventh Circuit has noted a “division of authority” over whether a district court is authorized to deny a Rule 60(b) motion pending appeal. Boyko v. Anderson, 185 F.3d 672, 675 (7th Cir. 1999). In concluding that the majority rule is the correct one, the Boyko court emphasized that “a denial of the motion does not alter the judgment that is under appeal and therefore does not . . . interfere with or threaten to duplicate the appellate proceedings.” Ibid.

This Court has hinted that the majority view may be the better of the two. The respondent in United States v. Cronic, 466 U.S. 648 (1984), filed a motion in the district court seeking a new trial pur-suant to Rule 33 of the Federal Rules of Criminal Procedure. As is the case here, he filed the motion after he had already initiated an appeal. The district court denied the motion “for lack of jurisdiction be-cause the case was pending on direct appeal at that time.” Id., at 667 n.42. This Court, however, con-cluded that the district court did “ha[ve] jurisdiction to entertain the motion and either deny the motion on its merits, or certify its intention to grant the motion to the Court of Appeals, which could then entertain a motion to remand the case.” Ibid. Subsequently, in

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Stone v. INS, 514 U.S. 386 (1995), the Court com-pared the effect of a Rule 60(b) motion on the finality and appealability of a district court’s judgment with the effect of a reconsideration motion on an order of the Board of Immigration Appeals. The Court noted that, either before or after filing his appeal, a litigant may also file a Rule 60(b) motion in the district court. Id., at 401. The Court also acknowledged that “[t]he denial of the motion is appealable as a separate final order, and if the original appeal is still pending it would seem that the court of appeals can consolidate the proceedings.” Ibid.

The rule allowing a district court to deny a Rule 60(b) motion pending appeal is, by a wide margin, the majority rule. As the commentators agree, the rule sets forth the “more satisfactory procedure” and rep-resents the “better” view. Fobian, 164 F.3d at 892 (citing Wright and Miller § 2873; J. Moore, MOORE’S FEDERAL PRACTICE § 60.67[b] (3d ed. 1998)). The rule has become so “widely accepted” that it has now been codified into the Federal Rules of Civil Procedure. Lopez Dominguez v. Gulf Coast Marine & Assoc., Inc., 607 F.3d 1066, 1074 n.5 (5th Cir. 2010) (citing Fed. R. Civ. P. 62.1). The minority rule is flawed and should be rejected. It allows appellate courts to eschew merits review of the denial of a Rule 60(b) motion. And with no possibility of appellate review on the merits in the event of a denial in the lower court, parties are encouraged to be dilatory in moving for relief from judgment.

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CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted, the order in case num-ber 09-2479 denying petitioner’s motion for a certifi-cate of appealability for want of jurisdiction should be vacated, and the case should be remanded in order for the motion for a certificate of appealability to be re-considered on the merits.

Respectfully submitted,

CHRISTOPHER J. MCGRATH Counsel of Record 503 South Saginaw Street Suite 939 Flint, Michigan 48502 (810) 238-8540 [email protected]

Attorney for Petitioner

App. 1

No. 09-2479

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

CLARENCE MOORE,

Petitioner-Appellant,

v.

SHIRLEE A. HARRY,

Respondent-Appellee.

) ) ) ) ) ) )

ORDER

(Filed Jun. 2, 2011)

Clarence Moore, a Michigan prisoner proceeding through counsel, appeals a district court order deny-ing his Federal Rule of Civil Procedure 60(b) motion that sought relief from the district court’s judgment dismissing Moore’s petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Moore has filed a motion seeking a certificate of appealability.

In 1998, a jury convicted Moore of first-degree murder, assault with intent to commit murder, and possession of a firearm during the commission of a felony. The trial court sentenced him to life in prison without parole for the murder conviction, a concur-rent term of fifteen to thirty years in prison for the assault conviction, and a consecutive term of two years in prison for the firearm conviction. On Novem-ber 20, 2001, the Michigan Court of Appeals affirmed his convictions and sentence. See People v. Moore, No. 214248, 2001 WL 1480718 (Mich. Ct. App. Nov. 20, 2001). The Michigan Supreme Court heard his appeal and affirmed his convictions. See People v. Moore, 679

App. 2

N.W.2d 41 (Mich. 2004). A motion for relief from judgment was filed on April 25, 2007, and denied on June 29, 2007.

On May 13, 2008, Moore filed the instant petition for a writ of habeas corpus, raising a confrontation claim and a jury composition claim. On December 9, 2008, the district court dismissed the habeas petition as untimely after determining that equitable tolling was not warranted. On December 30, 2008, Moore filed a motion for reconsideration or a motion for a certificate of appealability. Moore argued that recon-sideration was warranted because he was not afford-ed an evidentiary hearing to determine whether the statute of limitations should have been equitably tolled. The district court denied the motions on Janu-ary 6, 2009, and Moore appealed on January 22, 2009 (Case No. 09-1089). In an order filed March 12, 2009, this court construed Moore’s motion for reconsidera-tion as a Federal Rule of Civil Procedure 60(b) mo-tion, ruled that the January 6, 2009, order denying reconsideration is appealable, and concluded that the January 22, 2009, notice of appeal was timely as to that order.

On November 11, 2009, Moore filed in the district court a motion for relief from judgment under Rule 60(b). In this motion, he asserted that he was entitled to relief because prior counsel failed to properly pursue collateral review in the state courts, failed to file a timely federal habeas corpus petition, and made misrepresentations to the court when arguing for equitable tolling of the one-year limitation period.

App. 3

Moore provided affidavits from his parents and other documents to support his claim that prior counsel’s dereliction in handling Moore’s post-conviction mat-ters went beyond “mere negligence” and, therefore, constituted an extraordinary circumstance warrant-ing equitable tolling.

The district court, citing Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993), determined that it lacked jurisdiction to decide the post-judgment mo-tion because the filing of the notice of appeal in Case No. 09-1089 transferred jurisdiction to this court. Alternatively, the court determined that the Rule 60(b) motion lacked merit.

The motion for a certificate of appealability is denied. Generally speaking, “ ‘the district court loses jurisdiction over an action once a party files a notice of appeal, and jurisdiction transfers to the appellate court.’ ” Dixon v. Clem, 492 F.3d 665, 679 (6th Cir. 2007) (quoting Lewis, 987 F.2d at 394). The district court correctly held that it lacked jurisdiction to consider the November 11, 2009, Rule 60(b) motion filed after Moore filed his notice of appeal. Moore has not shown that reasonable jurists would disagree with the denial of the motion on that basis.

App. 4

Accordingly, the motion for a certificate of appealability is denied.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green Clerk

App. 5

No. 09-1089


CLARENCE MOORE,


v.

SHIRLEE A. HARRY,


) ) ) ) ) ) )

ORDER

(Filed Jun. 2, 2011)

Clarence Moore, a Michigan prisoner proceeding through counsel, appeals a district court order deny-ing his motion seeking reconsideration of a district court judgment dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Moore has filed a motion seeking a certificate of appealability.

In 1998, Moore was convicted of first-degree murder, assault with intent to commit murder, and possession of a firearm during the commission of a felony. The trial court imposed a sentence of life imprisonment without parole for the murder convic-tion, a concurrent term of 15 to 30 years imprison-ment for the assault conviction, and a consecutive term of two years imprisonment for the felony firearm conviction. On November 20, 2001, the Michigan Court of Appeals affirmed his convictions and sen-tence. See People v. Moore, No. 214248, 2001 WL 1480718 (Mich. Ct. App. Nov. 20, 2001). The Michigan Supreme Court heard his appeal and affirmed his

App. 6

convictions. See People v. Moore, 679 N.W.2d 41 (Mich. 2004). A motion for relief from judgment was filed on April 25, 2007, and denied on June 29, 2007. No appeal of that decision was taken.

Moore filed his habeas petition on May 13, 2008, and raised a confrontation claim and a jury composi-tion claim. The respondent filed a motion for summary judgment asserting that the petition was time-barred. Moore replied, arguing that equitable tolling princi-ples warranted excusing the untimely habeas peti-tion. On December 9, 2008, the district court dismissed the habeas petition as untimely after a finding that equitable tolling principles were not warranted. Moore filed a motion for reconsideration and a motion for a certificate of appealability. He argued that he should have been afforded an eviden-tiary hearing to demonstrate that equitable tolling principles were appropriate to excuse the untimely habeas petition. The district court denied the motions on January 6, 2009, and Moore appealed that order on January 22, 2009 (Case No. 09-1089). In an order filed March 12, 2009, this court construed Moore’s motion for reconsideration as a Federal Rule Civil Procedure 60(b) motion for relief from judgment, ruled that the January 6, 2009, order denying recon-sideration is appealable, and concluded that the January 22, 2009, notice of appeal was timely from that order.

A habeas petitioner must obtain a certificate of appealability before appealing the denial of a Rule 60(b) motion. United States v. Hardin, 481 F.3d 924,

App. 7

926 (6th Cir. 2007). To obtain a certificate of appealability, a petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To make the required showing in the context of a denial of a Rule 60(b) motion, a petitioner must demonstrate that jurists of reason would find it debatable 1) whether the district court properly denied the Rule 60(b) motion, and 2) whether the underlying habeas petition states a valid claim of the denial of a constitutional right. See Slack v. McDan-iel, 529 U.S. 473, 484 (2000); Harbison v. Bell, 503 F.3d 566, 569 (6th Cir. 2007), rev’d on other grounds, 129 S. Ct. 1481 (2009); see also Reid v. Angelone, 369 F.3d 363, 371-73 (4th Cir. 2004); Kellogg v. Strack, 269 F.3d 100, 104 (2d Cir. 2001). Rule 60(b) permits a district court to grant relief only if a party establishes that “the facts of its case are within one of the enu-merated reasons contained in Rule 60(b) that warrant relief from judgment.” Johnson v. Dellatifa, 357 F.3d 539, 543 (6th Cir. 2004) (quoting Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir. 1993)).

Moore’s motion for reconsideration does not identify any factual or legal basis justifying reconsid-eration of the district court’s order dismissing his habeas petition. Instead, the motion merely requested reconsideration of the order dismissing his untimely habeas petition because the district court did not hold an evidentiary hearing to determine whether the statute of limitations should have been equitably tolled. As pointed out by the district court, Moore

App. 8

failed to offer any evidence that “would have suggested the need for an evidentiary hearing. As such, because the parties’ filings and the record of state court pro-ceedings filed by respondent under Rule 5 established that the petition was time-barred, an evidentiary hearing was not warranted. See Rule 8(a), 28 U.S.C. foll. § 2254 (evidentiary hearing required only where facts necessary to determination are outside the record).” Order Denying Reconsideration at 2. Moore has not established any of the enumerated grounds for relief set forth in Rule 60(b) and, as a result, jurists of reason would not find it debatable whether the district court properly denied the motion for reconsideration.

Accordingly, Moore’s motion for a certificate of appealability is denied.



App. 9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION CLARENCE MOORE,

Petitioner,

v.

SHIRLEE HARRY,

Respondent. /

CASE NO. 2:08-CV- 12098 HONORABLE AVERN COHN

ORDER DENYING PETITIONER’S MOTION

FOR RELIEF FROM JUDGMENT

(Filed Nov. 13, 2009)

I.

This is a habeas case under 28 U.S.C. § 2254. The Court dismissed the case on the grounds that the petition was barred by the statute of limitations. See Order filed December 9, 2008. Petitioner filed a motion for reconsideration or for a certificate of appealability, which the Court denied on January 6, 2009. Petitioner then filed a notice of appeal and paid the appellate filing fee on January 22, 2009.

Before the Court is Petitioner’s motion for relief from judgment under Rule 60(b), which Petitioner filed on November 11, 2009. For the reasons that follow, the motion will be denied.

App. 10

II.

First, the Court lacks jurisdiction to decide the motion because it was filed after his notice of appeal and the filing of his notice of appeal transferred jurisdiction of the case to the United States Court of Appeals for the Sixth Circuit. See Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993). Petitioner’s case is pending in the Sixth Circuit. See Moore v. Harry, 09-1089. According to the docket sheet, Petitioner ob-tained an extension of time in which to ask the Sixth Circuit for a certificate of appealability. To date, Petitioner has not yet filed a motion for a certificate of appealability.

Second, notwithstanding the lack of jurisdiction, the motion lacks merit. Under Rule 60(b), a district court will grant relief from a final judgment or order only upon a showing of one of the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrin-sic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judg-ment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b).

App. 11

Petitioner has made no such showing. He con-tends that the Court should grant him relief because prior counsel failed to properly pursue collateral review in the state courts and timely seek federal habeas review and then made misrepresentations to the Court when arguing for equitable tolling of the one-year period. Even assuming that counsel erred and/or made misrepresentations, Petitioner has set forth no facts or legal arguments which establish that his petition is timely or that he is entitled to equita-ble tolling. It is well-settled that a criminal defendant has no constitutional right to counsel in state collat-eral proceedings brought after direct appeal. See Coleman v. Thompson, 501 U.S. 722, 752 (1991). There is also no constitutional right to counsel in federal habeas proceedings. See Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002). Consequently, counsel’s alleged failure to properly take action in state and/or federal court does not justify equitable tolling of the one-year period. See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (“Attorney miscalculation is simp-ly not sufficient to warrant equitable tolling, particu-larly in the post-conviction context where prisoners have no constitutional right to counsel.”); Jurado v. Burt, 337 F.3d 638, 644-645 (6th Cir. 2003); see also Abdus-Samad v. Bell, 420 F.3d 614, 632 (6th Cir. 2005) (alleged ineffective assistance of counsel could not establish cause to excuse procedural default in post-conviction proceedings because there is no right to counsel in such proceedings).

App. 12

Additionally, there is no evidence that counsel’s alleged conduct prevented Petitioner from timely filing his own habeas petition. In fact, Petitioner admits that he was aware of the statute of limitations and notified his attorney of the same prior to the expiration of the one-year period. See Motion for Relief from Judgment, p. 2 & Ex. G.

III.

For the reasons stated above, Petitioner has failed to establish that he is entitled to equitable tolling of the one-year period or that he is otherwise entitled to relief from judgment. Accordingly, the motion is DENIED.

SO ORDERED.

Dated: November 13, 2009 s/ Avern Cohn AVERN COHN

UNITED STATES DISTRICT JUDGE

App. 13

No. 09-1089


CLARENCE MOORE,


v.

SHIRLEE A. HARRY,


) ) ) ) ) ) )

ORDER

(Filed Mar. 12, 2009)

This court entered an order directing the appel-lant to show cause why his appeal should not be dismissed as it may apply to the district court’s judgment and the ruling denying a certificate of appealability. Counsel for the appellant filed a re-sponse in which he indicated that the appeal was filed only from the district court’s ruling denying a Fed. R. Civ. P. 60(b) motion for reconsideration.

A review of the documents before the court indi-cates that the judgment of the district court dismissing the 28 U.S.C. § 2254 habeas corpus action was en-tered on December 9, 2008. Counsel for the appellant filed on December 30, 2008 a motion for reconsidera-tion or a motion for a certificate of appealability. That motion was not filed within ten days of entry of the judgment, and it failed to toll the appeal period. See Fed. R. Civ. P. 59 and Fed. R. App. P. 4(a)(4). Recon-sideration and a certificate of appealability were denied on January 6, 2009, and an appeal was taken from that order on January 22, 2009. Because the

App. 14

appellant’s motion for reconsideration may be treated as a Fed. R. Civ. P. 60(b) motion for relief, the Janu-ary 6, 2009 order denying reconsideration is appeala-ble and the January 22, 2009 notice of appeal was timely filed from that ruling. See Fed. R. App. P. 4(a) and 26(a); Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir. 1998).

It is ordered that the show cause order is with-drawn.


/s/ Leonard Green Leonard Green

Clerk

App. 15

No. 09-1089


CLARENCE MOORE,


v.

SHIRLEE A. HARRY,


) ) ) ) ) ) )

ORDER

(Filed Feb. 6, 2009)

It appears from the documents before the court that the decision of the district court was entered on December 9, 2008. Any time-tolling motion was re-quired to be filed by December 23, 2008. See Fed. R. Civ. P. 6(a) and 59; Fed. R. App. P. 4(a)(4). A motion for reconsideration or request for a certificate of appealability was filed on December 30, 2008, and because it was not filed within the required ten-day period it failed to toll the appeal period. The motion was denied by order entered on January 6, 2009. The appellant filed a notice of appeal on January 22, 2009 seeking to appeal the order denying reconsideration or a certificate of appealability. The notice of appeal is late as it may apply to the December 9, 2008 judg-ment. See Fed. R. App. P. 4(a) and 26(a). Also, an order denying a certificate of appealability is not appeala-ble. Sims v. United States, 244 F.3d 509, 509 (6th Cir. 2001).

It is therefore ordered that appellant show cause in writing not later than twenty-one days from the

App. 16

date of this order why the appeal as it may apply to the judgment and the order denying a certificate of appealability should not be dismissed.

It is further ordered that the briefing schedule be held in abeyance.

ENTERED PURSUANTTO RULE 45(a), RULES

OF THE SIXTH CIRCUIT

/s/ Leonard Green Leonard Green

Clerk

App. 17


SOUTHERN DIVISION

CLARENCE MOORE,

Petitioner,

v.

SHIRLEE HARRY,

Respondent. /

CASE NO. 08-CV- 12098 HONORABLE AVERN COHN

ORDER DENYING PETITIONER’S MOTION

FOR RECONSIDERATION OR FOR A CERTIFICATE OF APPEALABILITY

(Filed Jan. 6, 2009)

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Clarence Moore (“Petitioner”), through counsel, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 claiming that he is incarcerated in violation of his constitutional rights. Respondent filed a motion for summary judgment on the grounds that the petition is untimely. The Court granted Respondent’s motion and dismissed the case. See Memorandum and Order Granting Respondent’s Motion for Summary Judgment and Dismissing Petition for Writ of Habeas Corpus, filed December 9, 2008. Before the Court is Petitioner’s motion for reconsideration or for a certificate of appealability. For the reasons that follow, the motion is DENIED.

App. 18

II. Reconsideration

E.D. Mich LR 7.1(g) governs motions for recon-sideration, providing in relevant part:

Generally, and without restricting the court’s discretion, the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by implication. The movant must not only demonstrate a palpa-ble defect by which the court and the parties have been misled but also show that correct-ing the defect will result in a different dispo-sition of the case.

A “palpable defect” is a defect which is obvious, clear, unmistakable, manifest or plain. Marketing Displays, Inc. v. Traffix Devices, Inc., 971 F. Supp. 262, 278 (E.D. Mich. 1997) (citing Webster’s New World Dic-tionary 974 (3rd ed. 1988)).

Petitioner argues reconsideration is warranted because the Court did not afford Petitioner an eviden-tiary hearing on whether the statute should have been equitably tolled. Putting aside that Petitioner did not request such a hearing, this argument is not grounds for reconsideration. Petitioner asserted equitable tolling was appropriate because he is un-trained in the law and unaware of the filing dead-lines. As explained in the Court’s December 9, 2008 decision, ignorance of the law does not justify tolling. Moreover, although Petitioner argued that he was likely to succeed on his claims, Petitioner presented no evidence which would have suggested the need for

App. 19

an evidentiary hearing. As such, because the parties’ filings and the record of state court proceedings filed by respondent under Rule 5 established that the petition was time-barred, an evidentiary hearing was not warranted. See Rule 8(a), 28 U.S.C. foll. § 2254 (evidentiary hearing required only where facts neces-sary to determination are outside the record).

III. Certificate of Appealability

Before Petitioner can appeal the Court’s decision, a certificate of appealability (COA) under 28 U.S.C. § 2254(c)(1)(A) and Fed. R. App. P. 22(b) must issue. A COA may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000), the United States Supreme Court held that where, as here, the petition is dismissed on procedural grounds, petition-er must show “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different matter or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” 120 S. Ct. at 1603-04 (quoting Barefoot v. Estelle, 463 U.S. 880, 898 n.4 (1983)).

The Supreme Court has explained that “[t]his threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Miller-El v. Cockrell, 123 S.Ct. 1029, 1039

App. 20

(2003). “A prisoner seeking a certificate of appeal-ability must prove ‘something more than the absence of frivolity’ ‘or the existence of mere good faith on his or her part.’ ” A prisoner need not prove that “some jurists would grant the petition for habeas corpus. . . . a claim can be debatable even though every jurist of reason might agree, after the certificate of appeal-ability has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 1040.

In this Circuit, the Court must make an individ-ualized determination of each claim raised in the petition in considering whether or not to grant a certificate of appealability. See Murphy v. State of Ohio, 263 F.3d 466 (6th Cir. 2001) (per curiam). Where, as here, a petitioner files a notice of appeal, the Court must issue an order granting or denying a certificate of appealability. See Castro v. United States, 310 F.3d 900 (6th Cir. 2002) (per curiam).

Petitioner has not shown he is entitled to a COA. As fully explained in the December 9, 2008 decision, the petition is clearly time barred and Petitioner has not demonstrated that he is entitled to equitable tolling. Reasonable jurists would not debate this conclusion or find that the petition deserves to pro-ceed further.

App. 21

SO ORDERED.

s/ Avern Cohn AVERN COHN


Dated: January 6, 2009

App. 22


SOUTHERN DIVISION CLARENCE MOORE,

Petitioner,

v.

SHIRLEE HARRY,

Respondent. /

CASE NO. 08-CV- 12098 HONORABLE AVERN COHN

MEMORANDUM AND ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT AND DISMISSING PETITION

FOR WRIT OF HABEAS CORPUS

(Filed Dec. 9, 2008)

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Clarence Moore (“Petitioner”), through counsel, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 claiming that he is incarcerated in violation of his constitutional rights. Before the Court is Respondent’s motion for summary judgment on the grounds that the petition is untimely. For the reasons that follow, the motion will be granted and the petition will be dismissed.

II. Facts and Procedural History

Petitioner was convicted of first-degree murder, assault with intent to commit murder, and possession

App. 23

of a firearm during the commission of a felony following a jury trial in the Genesee County Circuit Court in 1998. He was sentenced to life imprisonment without parole on the murder conviction, a concurrent term of 15 to 30 years imprisonment on the assault convic-tion, and a consecutive term of two years imprison-ment on the felony firearm conviction. Petitioner filed an appeal as of right with the Michigan Court of Appeals, which affirmed his convictions and sentence. People v. Moore, No. 214248, 2001 WL 1480718 (Mich. Ct. App. Nov. 20, 2001). Petitioner also appealed to the Michigan Supreme Court, which heard his case and affirmed his convictions. People v. Moore, 470 Mich. 56 (May 12, 2004).

On April 25, 2007, Petitioner filed a motion for relief from judgment with the state trial court, which was denied on June 29, 2007. It appears that Peti-tioner did not appeal that decision to the Michigan Court of Appeals or the Michigan Supreme Court.

Petitioner, through counsel, filed the present petition for writ of habeas corpus on May 22, 2008, raising a confrontation/cross-examination claim and a jury composition claim. Respondent filed the instant motion for summary judgment on the grounds that the e [sic] petition fails to comply with the one-year statute of limitations applicable to federal habeas actions. Petitioner has filed a reply to the motion contending that he is entitled to equitable tolling of the one-year period.

App. 24

III. Discussion

28 U.S.C. § 2244 includes a one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. The statute pro-vides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judg-ment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment be-came final by the conclusion of direct re-view or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitution-al right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual pred-icate of the claim or claims presented could have been discovered through the exercise of due diligence.

App. 25

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the perti-nent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

Here, the Michigan Supreme Court affirmed his convictions on May 12, 2004. Petitioner then had 90 days in which to seek a writ of certiorari with the United States Supreme Court. See Rule 13(1), Su-preme Court Rules. With regard to the statute of limitations, therefore, his convictions became final on or about August 10, 2004. See Lawrence v. Florida, ___ U.S.___, 127 S. Ct. 1079, 1083-84 (2007) (noting that the time for seeking direct review of a state court conviction includes the time for seeking a writ of certiorari with the United States Supreme Court). Accordingly, Petitioner was required to file his habeas petition by August 10, 2005, excluding any time during which a properly filed application for state post-conviction or collateral review was pending in accordance with 28 U.S.C. § 2244(d)(2).

Petitioner did not file his state court motion for relief from judgment until June 29, 2007. Thus, the one-year limitations period had expired well before Petitioner sought state post-conviction review. A state court post-conviction motion that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled. See Hargrove v. Brigano, 300 F.3d 717, 718 n. 1

App. 26

(6th Cir. 2002). Petitioner’s state post-conviction proceedings did not toll the running of the statute of limitations. Furthermore, the limitations period does not begin to run anew after the completion of state post-conviction proceedings. See Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001).

Petitioner has neither alleged nor established that the state created an impediment to the filing of his habeas petition, or that his claims are based upon newly-discovered facts or newly-recognized constitu-tional rights which have been given retroactive effect. His habeas action is thus barred by the statute of limitations set forth at 28 U.S.C. § 2244(d).

The Court of Appeals for the Sixth Circuit has, however, determined that the one-year limitations period is not a jurisdictional bar and is subject to equitable tolling. In Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001), the Sixth Circuit ruled that the test to determine whether equitable tolling of the habeas limitations period is appropriate is the five-part test set forth in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The five parts of this test are:

(1) the petitioner’s lack of notice of the filing requirement; (2) the petitioner’s lack of con-structive knowledge of the filing require-ment; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s reasonableness in remaining ignorant of the legal requirement for filing his claim.

App. 27

Dunlap, 250 F.3d at 1008. “These factors are not necessarily comprehensive and they are not all rele-vant in all cases. Ultimately, the decision whether to equitably toll a period of limitations must be decided on a case-by-case basis.” Miller v. Collins, 305 F.3d 491, 495 (6th Cir. 2002) (internal citation omitted). A petitioner, however, has the burden of demonstrating that he is entitled to equitable tolling. See Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002).

In his reply, Petitioner asserts that he lacked actual knowledge of the statute of limitations, that he was not represented by counsel following his state court direct appeals until he filed his motion for new trial, that he has been diligent in pursuing his rights, that Respondent will not be prejudiced, and that he has a substantial likelihood of prevailing on the merits. However, the fact that Petitioner is untrained in the law, was proceeding without a lawyer, or may have been unaware of the statute of limitations for a certain period does not warrant tolling. See Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004) (ignorance of the law does not justify tolling); Holloway v. Jones, 166 F. Supp. 2d 1185, 1189 (E.D. Mich. 2001) (lack of professional legal assistance does not justify tolling). Petitioner has provided no sufficient explanation for why he remained ignorant of the statute of limita-tions from its enactment in 1996 until the present time. Moreover, contrary to his assertion, he has not diligently pursued his rights given that he waited nearly three years after his convictions became final to file his motion for relief from judgment in the state

App. 28

trial court (and did not appeal that decision to the state appellate courts) and then waited nearly one year to file his habeas petition. While Petitioner’s conduct may have not been intentionally dilatory, it has not been diligent. Lastly, the Court notes that the absence of prejudice to the respondent is a factor to be considered “only after a factor that might justify tolling is identified.” Vroman v. Brigano, 346 F.3d 598, 605 (6th Cir. 2003). No such factor has been identified. Petitioner has failed to demonstrate that he is entitled to equitable tolling under Dunlap.

The Sixth Circuit has also held that a credible claim of actual innocence may equitably toll the one-year statute of limitations set forth at 28 U.S.C. § 2244(d)(1). See Souter v. Jones, 395 F.3d 577, 588-90 (6th Cir. 2005). To support a claim of actual inno-cence, a petitioner in a collateral proceeding “must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)); see also House v. Bell, 547 U.S. 518, 537-39 (2006). A valid claim of actual innocence requires a petitioner “to support his allegations of constitutional error with new reliable evidence – whether it be exculpatory scientific evidence, trust-worthy eyewitness account, or critical physical evi-dence – that was not presented at trial.” Schlup, 513 U.S. at 324. Furthermore, actual innocence means “factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623. Petitioner has made no such

App. 29

showing. His assertion that his habeas claims have merit does not justify tolling the limitations period. He has thus failed to demonstrate that he is entitled to equitable tolling of the one-year period.

IV. Conclusion

For the reasons stated above, Petitioner failed to file his habeas petition within the one-year limita-tions period established by 28 U.S.C. § 2244(d) and has not demonstrated entitlement to equitable toll-ing. Accordingly, Respondent’s motion for summary judgment is GRANTED. This case is DISMISSED.

SO ORDERED.

Dated: December 9, 2008 s/ Avern Cohn AVERN COHN


App. 30

No. 09-2479


CLARENCE MOORE,


v.

SHIRLEE A. HARRY,


) ) ) ) ) ) )

ORDER

(Filed Aug. 26, 2011)

Before: BOGGS, GIBBONS, and COOK, Circuit Judges.

Clarence Moore, proceeding through counsel, petitions the court to rehear en banc its order denying him a certificate of appealability. The motion has been referred to this panel, on which the original deciding judge does not sit, for an initial determina-tion on the merits of the petition for rehearing. Upon careful consideration, the panel concludes that the original deciding judge did not misapprehend or overlook any point of law or fact in issuing the order and, accordingly, declines to rehear the matter. See Fed. R. App. P. 40(a).

App. 31

The Clerk shall now refer the matter to all of the active members of the court for further proceedings on the suggestion for en banc rehearing.



App. 32

No. 09-2479


CLARENCE MOORE,


v.

SHIRLEE A. HARRY,


) ) ) ) ) ) )

ORDER

(Filed Sep. 16, 2011)

Before: BOGGS, GIBBONS, and COOK, Circuit Judges.

Clarence Moore petitions for rehearing en banc of this court’s order entered on June 2, 2011, denying his application for a certificate of appealability. The petition was initially referred to this panel, on which the original deciding judge does not sit. After review of the petition, this panel issued an order announcing its conclusion that the original application was properly denied. The petition was then circulated to all active members of the court, none of whom requested a vote on the suggestion for an en banc rehearing. Pursuant to established court procedures, the panel now denies the petition for rehearing en banc.



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