United States District Court, S.D. Ohio, Eastern Division
ROBERT L. BURNS, JR., Petitioner,
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
Chelsey M. Vascura Magistrate Judge.
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.
matter is before tile Court for consideration of
Petitioner's July 2, 2019 Motion to Vacate a Judgment for
Fraud Upon the Court, in which Petitioner moves under Federal
Rule of Civil Procedure 60(b)(6) for an order vacating
judgment and the Court's dismissal of this habeas corpus
action as time barred. (ECF No. 21.) For the reasons that
follow, Petitioner's Motion to Vacate (ECF No. 21) is
Court entered judgment on March 6, 2018, dismissing this
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 as time-barred. (ECF No. 11.) On August 8, 2018,
the United States Court of Appeals for the Sixth Circuit
denied Petitioner's request for a certificate of
appealability. (ECF No. 18.) On April 2, 2019, the
United States Supreme Court denied Petitioner's petition
for a writ of certiorari. (ECF No. 20.) On July
2, 2019, Petitioner filed the subject Motion to
Vacate, seeking an order vacating final judgment and this
Court's decision finding Petitioner's habeas action
to be time barred.
to Petitioner, relief from judgment is warranted because
police planted evidence against him, and his underlying
criminal convictions are based on fraud. In support,
Petitioner cites the same evidence and advances the same
arguments this Court has already addressed. For example,
Petitioner again refers to a February 10, 2012 document
entitled "Memorandum from Diamond Boggs,"
(Exhibit B, ECF No. 1-1, PAGEID # 45), a memorandum
drafted by a computer forensic specialist that had apparently
been provided to defense counsel, but was not introduced at
trial. Petitioner also references a "diskette"
submitted to the BCI Computer Crime Unit (ECF No. 21, PAGEID
#210), and alleges that his attorney refused to turn over
transcripts, discovery material, or other sealed documents
trial documents. In addition to the foregoing, which the
Court has already considered, Petitioner now references the
Ohio Fifth District Court of Appeals' decision in child
custody proceedings. He also now references an unrelated case
involving the 1990 prosecution of Virginia LeFever for the
aggravated murder of her husband, William LeFever, see
LeFever v. Ferguson, 956 F.Supp.2d 819 (S.D. Ohio July
9, 2013),  in support of his allegations of
prosecutorial misconduct. He alleges that the prosecution
wrongly prosecuted him with racial animus and discriminatory
intent. (ECF No. 21, PAGEID # 213.) Referring to a police
interview, (see ECF No. 1 -1, PAGEID #31),
Petitioner asserts the denial of the effective assistance of
counsel based on his attorney's failure to call alibi
witnesses. He further argues that the Court improperly denied
his request for discovery and maintains that unidentified
exculpatory evidence that will establish that the prosecution
violated Brady v. Maryland, 373 U.S. 83 (1963). In
short, Petitioner asserts that he is actually innocent and
the victim of a manifest miscarriage of justice.
petitioner's challenge to the Court's application of
the statute of limitations may properly be addressed in a
Rule 60(b) motion, and will not be considered to be a
successive or second habeas corpus petition subject to
authorization for filing from the United States Court of
Appeals for the Sixth Circuit under 28 U.S.C. §
2244(b)(3)(A). See Hill v. Mitchell, No.
1:98-cv-452, 2019 WL 1785485, at *5-6 (citing Mitchell v.
Rees, 261 Fed.Appx. 825, 829 (6th Cir. 2008); see
Gonzalez v. Crosby, 545 U.S. 524 (2005).
Rule 60(b)(6), upon which Petitioner relies, provides as
(b) 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:
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(6).
60(b)(6) "vests courts with a deep reservoir of
equitable power to vacate judgments 'to achieve
substantial justice' in the most 'unusual and extreme
situations.'" Zagorski v. Mays, 907 F.3d
901, 904 (6th Cir. 2018) (citing Stokes v. Williams,475 F.3d 732, 735 (6th Cir. 2007)). It "applies only in
exceptional or extraordinary circumstances where principles
of equity mandate relief." West v. Carpenter,790 F.3d 693, 696 (6th Cir. 2015) (citing McGuire v.Warden, Chillicothe Corr. Inst.,738 F.3d 741, 750
(6th Cir. 2013)). Such circumstances rarely occur in habeas
corpus cases. Gonzalez v. Crosby,545 U.S. 524, 535
(2005). Moreover, Rule 60(b)(6) "does not grant a
defeated litigant 'a second chance to convince the court
to rule in his or her favor by presenting new explanations,
legal theories, or proof.'" Johnson v.
Merlak, No. 4:18cv1062, 2019 WL 1300215, at *2 (N.D.
Ohio March 21, 2019) (citing Jinks v. AlliedSignal,Inc.,250 F.3d 381, 385 (6th Cir. 2001)). The public
policy favoring the finality of judgments and the termination
of litigation further circumscribes the application of Rule
60(b)(6). BlueDiamond Coal Co. v. Trustees of
UMWA Ben. Fund,249 F.3d 519, 524 (6th Cir. 2001)
(citation omitted). A claim of legal error, unaccompanied by
facts establishing extraordinary and exceptional
circumstances, likewise does not provide a basis for relief
under Rule 60(b)(6). Westv.Bell,