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Burns v. Warden, Chillicothe Correctional Institution

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

July 29, 2019

ROBERT L. BURNS, JR., Petitioner,
v.
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

          Chelsey M. Vascura Magistrate Judge.

          OPINION AND ORDER

          EDMUNI A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         This 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 DEND2D.

         I.

         This 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.

         According 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.[1] 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), [2] 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.

         II.

         A 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 follows:
(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).

         Rule 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, ...


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