The opinion of the court was delivered by: Judge Graham
On June 11, 1993, petitioner was sentenced in this Court to 235 months imprisonment following his conviction under 21 U.S.C. §846. Doc. No. 43. On April 10, 1997, petitioner filed a motion to vacate his sentence under 28 U.S.C. §2255, Doc. No. 49, which was eventually dismissed on September 23, 1998, Doc. No. 55. The United States Court of Appeals declined to grant petitioner a certificate of appealability. Doc. No. 60.
On November 15, 2006, petitioner filed a motion, under F.R. Civ. P. 60(b), for relief from the judgment entered in his earlier action under §2255. Doc. No. 61.
On January 4, 2007, the Magistrate Judge issued a Report and Recommendation recommending that the motion for relief from judgment be construed as a successive §2255 petition and transferred to the United States Court of Appeals for the Sixth Circuit for authorization for filing. Doc. No. 63. On January 29, 2007, an order was entered adopting and affirming the Magistrate Judge's Report and Recommendation, without consideration of any objections. Doc. No. 65. However, the docket indicates that, on January 19, 2007, petitioner filed objections to the Magistrate Judge's Report and Recommendation. Doc. No. 18.
This Court's January 29, 2007, order adopting and affirming the Magistrate Judge's Report and Recommendation without consideration of those objections is hereby VACATED. However, for the reasons that follow, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED, and this action is TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a successive petition.
Petitioner objects to the Magistrate Judge's recommendation that his Rule 60(b) motion be construed as a successive petition under Gonzalez v. Crosby, 125 S.Ct. 2641, 2647 (6th Cir. 2005). Petitioner again alleges, as he did in his §2255 petition, that the government improperly failed to disclose its agreement with prosecution witness Kane Adams, and lied by denying that such an agreement existed. Petitioner also again alleges that Adams lied when he denied at trial that any such an agreement existed. Petitioner asserts in his Rule 60(b) motion that the Court improperly denied his claim of prosecutorial misconduct in view of Bell v. Bell, 460 F.3d 739 (6th Cir. 2006). Citing Bell v. Bell, petitioner contends that a "tacit agreement" existed between the government and Adams that should have been disclosed to the defense. Motion for Relief from Judgment, Doc. No. 61, at 3-5.
As discussed by the Magistrate Judge, in Gonzalez v. Crosby, supra, the United States Supreme Court held that a Rule 60(b) motion that raises one or more substantive claims for relief, instead of attacking a "defect in the integrity of the federal habeas proceeding," id., at 2648, must be construed as a successive petition:
Using Rule 60(b) to present new claims for relief from a state court's judgment of conviction-even claims couched in the language of a true Rule 60(b) motion-circumvents AEDPA's requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts. § 2244(b)(2). The same is true of a Rule 60(b)(2) motion presenting new evidence in support of a claim already litigated: even assuming that reliance on a new factual predicate causes that motion to escape § 2244(b)(1)'s prohibition of claims "presented in a prior application," § 2244(b)(2)(B) requires a more convincing factual showing than does Rule 60(b). Likewise, a Rule 60(b) motion based on a purported change in the substantive law governing the claim could be used to circumvent § 2244(b)(2)(A)'s dictate that the only new law on which a successive petition may rely is "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." In addition to the substantive conflict with AEDPA standards, in each of these three examples use of Rule 60(b) would impermissibly circumvent the requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive-petition bar. §2244(b)(3).
In most cases, determining whether a Rule 60(b) motion advances one or more "claims" will be relatively simple. A motion that seeks to add a new ground for relief, as in Harris, supra, will of course qualify. A motion can also be said to bring a "claim" if it attacks the federal court's previous resolution of a claim on the merits,*fn1 since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief. That is not the case, however, when a Rule 60(b) motion 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.*fn2
Petitioner nonetheless argues that the Magistrate Judge erroneously construed his Rule 60(b) motion as a successive petition because his §2255 claim raises an issue of alleged fraud by the government and a government witness in denying the existence of an agreement between them, and therefore attacks the integrity of Court proceedings. See Objections. This Court is not persuaded by petitioner's argument. Petitioner asserts in his 60(b) motion the same claim that has previously been rejected by this Court. He "attacks the federal court's previous resolution of a claim on the merits," arguing that "a purported change in the substantive law governing the claim" now warrants granting him relief. See Gonzalez v. Crosby, supra. Such an argument is plainly foreclosed from consideration under Rule 60(b) by Gonzalez v. Crosby, supra. Further, petitioner's claim alleges fraud at petitioner's criminal trial, and not in his federal habeas corpus proceedings. For all these reasons, his Rule 60(b) motion is properly construed as a successive petition. See id. This Court's January 29, 2007, order adopting and affirming the Magistrate Judge's Report and Recommendation without consideration of petitioner's objections is VACATED.
Pursuant to 28 U.S.C. 636(b)(1), this Court has conducted a de novo review of those portions of the Report and Recommendation objected to by petitioner. For the foregoing reasons, and for the reasons detailed by the Magistrate Judge, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is ...