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Dixon v. Warden, Richland Correctional Evstttution

United States District Court, S.D. Ohio, Eastern Division

June 1, 2017

LaFONSE DIXON, Petitioner,
v.
WARDEN, RICHLAND CORRECTIONAL EVSTTTUTION, Respondent.

          Magistrate Judge Kimberly A. Jolson

          OPINION AND ORDER

          EDMUND A. SARGUS, JR. CHIEF JUDGE

         Petitioner has filed a Motion for Reconsideration of this Court's dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 22.) Petitioner complains that the Court was biased against him, because the Court granted him a twenty day extension of time to file objections to the Magistrate Judge's Report and Recommendation, rather than the thirty day extension of time that he had requested and did not rule on his request for an additional sixty days to file a supplemental brief or grant his request for the appointment of counsel prior to issuance of the March 13, 2017, Opinion and Order overruling his Objection and dismissing this action. (Doc. 20.) Petitioner further contends that the Court must be biased against him in view of the facts of the case and in view of the summary denial of his request for the appointment of counsel. Petitioner requests reconsideration of the final judgment of dismissal of this case on this basis. He has filed a Motion for Recusal (Doc. 23) on these same grounds. Additionally, Petitioner again argues that, contrary to the factual findings of the state appellate court, the victim did not identify him as one of her assailants before she died and his attorney should have called an expert witness to establish that the victim could not have done so. For the reasons that follow. Petitioner's Motion for Reconsideration (Doc. 22) and Motion for Recusal (Doc. 23) are

         DENIED.

         Rule 60(b) of the Federal Rules of Civil Procedure provides:

         Grounds for Relief from a Final Judgment, Order, or Proceeding. 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 The Court will not now again address, in the context of a Rule 60(b) motion, Petitioner's repeated arguments that the Court improperly rejected his claims on the merits. Such arguments are not properly addressed in Rule 60(b) proceedings. See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)(a Rule 60(b) motion that attacks the federal court's previous resolution of a claim on the merits constitutes a successive habeas corpus petition and is subject to the requirements for the filing of successive petitions); Franklin v. Jenkins, 839 F.3d 465, 473 (6th Cir. 2016)("a prisoner seeking relief under Rule 60(b) brings a 'second or successive' habeas application when he 'seeks to present new evidence in support of a claim already litigated"')(citing Moreland v. Robinson, 813 F.3d 315, 323 (6th Cir. 2016)).

         Further, Petitioner has provided no basis for reconsideration of the final judgment of dismissal of this case. The record is without support for Petitioner's claim of judicial bias. The Court provided Petitioner with more than ample opportunity to file objections to the Magistrate Judge's recommendation of dismissal. On December 21, 2016, the Court vacated its prior dismissal of this action and granted Petitioner an extension of twenty days to file objections to the Magistrate Judge's Report and Recommendation, as Petitioner had indicated that he did not timely receive notice of the Magistrate Judge's Report and Recommendation, and that he did not have sufficient time to prepare his objections. (See Docs. 14, 15.) The Court then granted Petitioner an additional extension of time until March 2, 2017, to file further arguments in support of his Objection, which he presented in his Motion for Supplemental Brief and Second Motion for Supplemental Brief. See Opinion and Order (Doc. 20.) Further, the record fails to reflect that this case was unduly complex or that Petitioner could not adequately present his arguments such that the interests of justice or due process required the appointment of counsel.

[i]t is well established that a habeas corpus proceeding is civil in nature, and the Sixth Amendment right to counsel afforded for criminal proceedings does not apply. Evitts v. Lucey,469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Barker v. Ohio,330 F.2d 594 (6th Cir.1964). The decision to appoint counsel for a federal habeas petitioner is within the discretion of the court and is required only where the interests of justice or due process so require. 18 U.S.C. § 3006A(g); Mira v. Marshall,806 F.2d 636 (6th Cir.1986). Appointment of counsel in a habeas proceeding has been found to be mandatory only if the district court determines that an evidentiary hearing is required. Rule 8(c), Rules Governing ยง 2254 Cases. Where no evidentiary hearing is necessary, as in the instant case, the district court ...

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