United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose, District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge.
case is before the Court on Defendant's purported
“Rule 60(d)(1) Independent Action in Equity” to
set aside this Court's judgment of August 26, 2011,
dismissing Lewis's Motion to Vacate under 28 U.S.C.
§ 2255 (ECF No. 291). It constitutes Lewis's
sixteenth request for relief from judgment under Fed.R.Civ.P.
instant filing should be dismissed for a number of reasons.
first place, his filing is not an “independent”
action, but a paper filed in his criminal case, United
States v. Lewis, Case No. 3:08-cr-175. An
“independent” action would be a separate new
civil case. The Magistrate Judge has previously pointed this
out to Mr. Lewis and indeed ordered the Clerk to provide him
with the necessary forms for filing an independent action
(ECF No. 288). Instead of filing an “independent”
civil action with the required motion for leave to proceed
in forma pauperis, Lewis has filed the instant paper
in his criminal case.
of moving to proceed in this “independent” action
in forma pauperis, Lewis argues that the Prison
Litigation Reform Act does not apply to habeas corpus or
§ 2255 actions. That is the state of the law in the
Sixth Circuit with respect to those two kinds of actions.
Kincade v. Sparkman, 117 F.3d 949 (6th
Cir. 1997). But if this is an action under § 2255, then
it faces the obstacle of requiring permission from the
circuit court before it can proceed, because it is plainly a
second or successive 2255 motion. Kincade does not
exempt “independent actions under Rule 60(d)(1)”
from the PLRA.
second reason to deny the instant Motion is that, as the
Court has previously held, an action under Fed.R.Civ.P.
60(d)(1) is not available to vacate a federal criminal
judgment (See Report and Recommendations, ECF No. 284, PageID
1933). That Report has been adopted by the District Court
over Lewis's objections (ECF No. 290). In his instant
Motion, he argues the Sixth Circuit has allowed such a
motion. (ECF No. 291, PageID 1948, citing Mitchell v.
Rees, 651 F.3d 593 (6th Cir. 2011).
Mitchell allowed that under very limited
circumstances, an independent action in equity might be
available to correct a decision in a § 2254 habeas
corpus case, which is civil in nature. But nothing Lewis has
cited and nothing stated in Mitchell suggests that
such an independent action in equity is available to set
aside the criminal judgment of a United States District
an independent action in equity were available to reform a
federal criminal judgment, Lewis has not shown his
entitlement to such relief under the standards set forth in
Mitchell. In the first place, Lewis has tried
fifteen times before to vacate the judgment in question,
using the subdivisions of Fed.R.Civ.P. 60(b). Secondly, and
more importantly, he has not shown a grave miscarriage of
justice or actual innocence: the case on which he relies,
Whitfield v. United States, 135 S.Ct. 785 (2015),
expressly held that 18 U.S.C. § 2113(e) was satisfied by
forced movement of any distance, even if entirely within the
same building or over a short distance. The Court already
adopted this application of Whitfield in response to Mr.
Lewis's fifteenth motion for relief from judgment
(Report, ECF No. 284, PageID 1933).
therefore respectfully recommended that the instant Motion be
denied. Because reasonable jurists would not disagree with
this conclusion, Petitioner should be denied a certificate of
appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and
therefore should not be permitted to proceed in forma
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 Recommendations. Pursuant to Fed.R.Civ.P.
6(d), this period is extended to seventeen days because this
Report is being served by mail. .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 Recommendations are 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, 949-50 (6th Cir. 1981);
Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
course, as a prisoner within the meaning of the Prison
Litigation Act, Lewis would be required to pay the full
filing fee for such an action.
an independent action is not available to vacate a federal
criminal judgment. The sole remedy to achieve that result,
aside from direct appeal, is a motion to vacate sentence
under 28 U.S.C. § 2255. Because Lewis has already filed
one such motion (ECF No. 124), he must obtain permission from
the Sixth Circuit Court of Appeals before filing another.
his claim is without merit. Mr. Lewis has many times argued
that the facts to which he pled guilty (ECF No. 100, PageID
1073-74) are insufficient to support his conviction. This
Court has repeatedly rejected that argument. The new case on
which he relies, Whitfield v. United States, 135
S.Ct. 785 (2015), expressly held that 18 U.S.C. §
2113(e) was satisfied ...