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Melhado v. Wainwright

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

July 23, 2018

CLIVE N. MELHADO, Petitioner,

          James L. Graham Judge


          Kimberly A. Jolson United States Magistrate Judge

         This is an action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. Petitioner seeks release from confinement imposed pursuant to a state-court judgment in a criminal action. This case has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and Columbus General Order 14-1 regarding assignments and references to United States Magistrate Judges.

         Petitioner has filed an application to proceed in forma pauperis. Upon consideration, the Undersigned finds the application to be meritorious and it is GRANTED. Petitioner shall be PERMITTED to prosecute this action without prepayment of fees or costs and judicial officers who render services in this action will do so as if costs had been prepaid.

         This matter is before the Court on its own motion under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (“Rule 4”). Pursuant to Rule 4, the Court conducts a preliminary review to determine whether “it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief. . . .” For the reasons that follow, these are the circumstances here.


         Petitioner has filed what is entitled as a Motion to Vacate Void Judgment Pursuant to Civil Rule 60(b), challenging his March 2002 convictions after a jury trial in the Franklin County Court of Common Pleas on charges of murder, aggravated murder, and aggravated robbery. (Doc. 1-1, PAGEID # 15, 28). The trial court imposed a term of life imprisonment without the possibility of parole. (PAGEID # 29). Petitioner asserts that the trial court lacked subject matter jurisdiction because the criminal complaint filed against him was dismissed upon the filing of an Indictment by the grand jury. (See PageID # 18-19). Petitioner argues that his convictions therefore constitute a miscarriage of justice, and that the judgment against him is fraudulent and void. He complains that, although he raised this same argument in a prior federal habeas corpus petition under 28 U.S.C. § 2254, the Court did not address the issue, and instead transferred that action to the United States Court of Appeals for the Sixth Circuit as a successive petition. Melhado v. Warden, Marion Corr. Inst., Case No. 2:17-cv-00725 (PAGEID # 34). On April 18, 2018, the Sixth Circuit denied Petitioner's request for authorization for the filing of a second or successive § 2254 petition. (Doc. 1-2, PAGEID # 37). Petitioner thus now has filed this action, purportedly under Rule 60(b)(3), (4), of the Federal Rules of Civil Procedure, again arguing that his state convictions are void and based on fraud.[1]

         II. Discussion

         Rule 60(b) cannot help Petitioner here. That rule “allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005) (footnote omitted). It does not, however, provide a means for a state prisoner to challenge the constitutionality of a state court conviction in federal court. Such an action is properly brought under the provision of 28 U.S.C. § 2254, which provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a).

         Moreover, a Rule 60(b) motion cannot be used as a vehicle to circumvent the limitations that Congress has placed upon the presentation of claims in a second or successive habeas corpus petition. See Moreland v. Robinson, 813 F.3d 315, 322 (6th Cir. 2016) (citing Gonzalez, 545 U.S. at 531-32). As previously discussed, this Court lacks jurisdiction to entertain a successive petition for a writ of habeas corpus absent authorization for the filing of such an action from the Court of Appeals. 28 U.S.C. § 2244(b). Without such approval, this Court must transfer a successive habeas corpus petition to the Sixth Circuit Court of Appeals. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam).

“[F]or the purposes of § 2244(b) an ‘application' for habeas relief is a filing that contains one or more ‘claims.' ” Gonzalez, 545 U.S. at 530, 125 S.Ct. 2641. A § 2244(b) claim is “an asserted federal basis for relief from a state court's judgment of conviction.” Id. A movant is not making a habeas claim when he seeks only to lift the procedural bars that prevented adjudication of certain claims on the merits. Id. at 532 n. 4, 125 S.Ct. 2641. But he is making a habeas claim when he seeks to add a ...

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