Opinion
CASE NO. 2:01-CV-1166, CRIM. NO. 2:97-CR-167(6).
February 1, 2010
OPINION AND ORDER
This matter is before the Court on petitioner's October 10, 2008, and December 18, 2008, motions to reopen and for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), Doc. Nos. 387, 390; his December 31, 2008, motion for recusal of the District Judge, Doc. No. 392, all of which are DENIED for the reasons set out below. Also before the Court are petitioner's March 13, 2009, motion for a writ of error coram nobis, Doc. No. 398; and his October 15, 2009, motion to dismiss the indictment for failure to state an offense or show jurisdiction, Doc. No. 408, which are, for the reasons set out below, TRANSFERRED to the United States Court of Appeals for the Sixth Circuit.
Finally, petitioner's motions to clarify and correct the record, Doc. Nos. 393, 395, to include the exhibits attached thereto, and to correct the record to reflect that the exhibits filed in Doc. No. 388, support his October 10, 2008, motion to reopen the appeal, Doc. No. 387, hereby are GRANTED.
For the reasons that follow, the Clerk is DIRECTED to refuse further filings in this case without payment of the filing fee. Petitioner is advised that he may be subject to imposition of a fine for frivolous filings submitting the same claims for relief or further successive petitions filed without first obtaining authorization from the United States Court of Appeals for the Sixth Circuit.
Petitioner's motions to clarify and correct the record, Doc. Nos. 393, 395, to include the exhibits attached thereto, and to correct the record to reflect that the exhibits filed in Doc. No. 388, support his October 10, 2008, motion to reopen the appeal, Doc. No. 387, hereby are GRANTED.
Petitioner's remaining motions, Doc. Nos. 387, 390, 392, are DENIED. His motion for a writ of coram nobis and 398, 408, are TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a successive petition.
Petitioner requests to amend or reopen his 2001 federal habeas corpus petition, and requests relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) because he states that, prior to December 2006, he was unable to obtain a free copy of twenty-one pages of his trial transcripts. He requests to be provided with a free copy of his trial transcripts. See Doc. No. 387. In support of this motion, petitioner has attached, inter alia, copies of letters indicating that he attempted to obtain a copy of his trial transcripts in January 2000, but apparently was unable to obtain a free copy of his trial transcripts at that time. Petitioner's attorney apparently thereafter mailed petitioner a copy of his file. On January 30, 2001, petitioner wrote his attorney, Kevin Durkin, requesting twenty-one pages of his trial transcripts, i.e., pages 793-803 and 915-924, which he said were missing from the record that had been sent to him by counsel. See Doc. No. 388. Attorney Durkin advised petitioner to obtain any missing papers from the clerk's office, the court reporter, or the National Archives. See id. In a letter dated December 27, 2001, the Clerk of this Court advised petitioner that it would cost him $10.50 for a copy of the pages he requested. See id. Petitioner indicates that he obtained the remaining twenty-one missing pages of his trial transcripts in December 2006. See Doc. No. 392. He has attached a copy of the missing transcript pages he refers to. See Doc. No. 395.
Criminal defendants are entitled to a transcript at state expense for use during direct appeal, but there is no constitutional right to a free transcript in a collateral proceeding. United States v. MacCollom, 426 U. S. 317 (1976); Ross v. Moffitt, 417 U. S. 600 (1974). In any event, petitioner acknowledges that his attorney provided him with all but twenty-one pages of the trial transcript in this case prior to or during the pendency of these § 2255 proceedings, see Doc. Nos. 241, 244, 247, 254, 261. Further, and assuming that petitioner's motion may properly be considered under Rule 60(b), see Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005), petitioner's Rule 60(b) request is untimely.
In Gonzalez v. Crosby, supra, the United States Supreme Court held:
Using Rule 60(b) to present new claims for relief from a state court's judgment of conviction-even claims couched in the language of a true Rule 60(b) motion-circumvents AEDPA's requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts. § 2244(b)(2). The same is true of a Rule 60(b)(2) motion presenting new evidence in support of a claim already litigated: Even assuming that reliance on a new factual predicate causes that motion to escape § 2244(b)(1)'s prohibition of claims "presented in a prior application," § 2244(b)(2)(B) requires a more convincing factual showing than does Rule 60(b). Likewise, a Rule 60(b) motion based on a purported change in the substantive law governing the claim could be used to circumvent § 2244(b)(2)(A)'s dictate that the only new law on which a successive petition may rely is "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." In addition to the substantive conflict with AEDPA standards, in each of these three examples use of Rule 60(b) would impermissibly circumvent the requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive-petition bar. § 2244(b)(3).
In most cases, determining whether a Rule 60(b) motion advances one or more "claims" will be relatively simple. A motion that seeks to add a new ground for relief, as in Harris, supra, will of course qualify. A motion can also be said to bring a "claim" if it attacks the federal court's previous resolution of a claim on the merits, FN4 since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief. That is not the case, however, when a Rule 60(b) motion attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.FN5
FN4. The term "on the merits" has multiple usages. See, e.g., Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 501-503, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). We refer here to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d). When a movant asserts one of those grounds (or asserts that a previous ruling regarding one of those grounds was in error) he is making a habeas corpus claim. He is not doing so when he merely asserts that a previous ruling which precluded a merits determination was in error-for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.
FN5. Fraud on the federal habeas court is one example of such a defect. See generally Rodriguez v. Mitchell, 252 F.3d 191, 199 (C.A.2 2001) (a witness's allegedly fraudulent basis for refusing to appear at a federal habeas hearing "relate[d] to the integrity of the federal habeas proceeding, not to the integrity of the state criminal trial"). We note that an attack based on the movant's own conduct, or his habeas counsel's omissions, see, e.g., supra, at 2647, ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably.
A motion under Rule 60(b)(6) "must be made within a reasonable time." Fed.R.Civ.P. 60(c). What constitutes a reasonable time limit for making a Rule 60(b)(6) motion depends upon the facts and circumstances in each case. The Court considers the length of delay, the movant's reason for the delay, the movant's ability to learn earlier of the grounds relied upon in the Rule 60(b)(6) motion, whether the opposing party is prejudiced by the delay, and any other relevant circumstances compelling equitable relief. In re G.A.D., Inc., 340 F.3d 331, 334 (6th Cir. 2003); LAL v. Prudential Securities, Inc., 172 F.3d 48 (Table, text in 1998 WL 889765, * 3 (6th Cir. Dec.8, 1998)); Olle v. Henry Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990).United States v. Frazier, 2009 WL 3871442 (E.D. Tenn. November 13, 2009). None of the foregoing factors weigh in petitioner's favor. Petitioner has not met his burden of showing any extraordinary circumstances compelling equitable relief under Rule 60(b)(6). See id. His request, Doc. No. 387, therefore is DENIED.
Petitioner also requests, pursuant to Rule 60(b), that this Court grant him relief from the decision of the United States Court of Appeals for the Sixth Circuit affirming his convictions and sentence. See United States v. Gordon, 238 F.3d 425, unpublished, 2000 WL 1785905 (6th Cir. November 22, 2000), Doc. No. 208, based on what he purports to have been fraudulent letters that were submitted to the Court at trial. See Doc. No. 390. However, this Court is without the authority to grant such relief. Petitioner's request, Doc. No. 390, therefore is DENIED.
Petitioner additionally has filed a motion for recusal of Judge Graham from further proceedings pursuant to 28 U.S.C. § 455. See Doc. No. 392. As his basis for this motion, petitioner contends that Judge Graham improperly permitted admission of certain evidence against him at trial. According to petitioner, he previously was unable to raise this issue because he did not obtain the missing twenty-one pages of his trial transcripts until December 2006. See id.
Petitioner's motion for recusal is untimely.
Sec. 455 requires that a party raise the issue of disqualification of the judge at the earliest moment after acquiring knowledge of the facts providing a basis for disqualification. United States v. Patrick, 542 F.2d 381 (7th Cir. 1976); United States v. Conforte, 457 F.Supp. 641 (D.Nev. 1978). Notably, one case found that a motion for recusal filed weeks after the conclusion of trial was presumptively untimely absent a showing of good cause for the tardiness. United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). Timeliness is therefore clearly very important in bringing a motion for recusal.Deuer Manufacturing, Inc. v. Kent Products, Inc., 760 F.Supp. 609, 611 (E.D. Michigan 1989); see also Callihan v. Eastern Kentucky Production Credit Association, 895 F.2d 1412, unpublished, 1990 WL 12186 (6th Cir. February 13, 1990), citing In re City of Detroit, 828 F.2d 1160, 1167-68 (6th Cir. 1987) ( per curiam). Even accepting petitioner's contention that he was unable to discover the facts forming the basis for his motion until December 2006, he waited approximately two years later, and six years after this Court's dismissal of his § 2255 petition to file his motion. Further, petitioner's motion fails to allege a basis for recusal.
Disqualification under . . . 455 must be predicated "upon extrajudicial conduct rather than on judicial conduct," and upon "a personal bias as distinguished from judicial one, arising out of the judge's background and association and not from the judge's view of the law." Id. at 1303-04 (quotations and citations omitted). Section 455 provides that a judge must disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). It is well-settled that adverse rulings during the course of proceedings are not by themselves sufficient to establish bias or prejudice which will disqualify the presiding judge. See Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir. 1956); see also City of Cleveland v. Krupansky, 619 F.2d 576, 578 (6th Cir. 1980).Carlton v. United States, 2007 WL 2332496 (E.D. Michigan August 15, 2007). The sole basis for petitioner's motion relies on the District Judge's "active" role in purported erroneous evidentiary rulings. See Motion for Recusal, Doc. No. 392. This allegation fails to raise an issue of extrajudicial or personal bias warranting recusal. See id. Therefore, petitioner's motion, Doc. No. 392, is DENIED.
Petitioner has filed a petition for a writ of error coram nobis requesting that his conviction be vacated, Doc. No. 398, and a motion to dismiss the indictment for failure to state an offense or establish jurisdiction. Doc. No. 408. In these motions, petitioner asserts that he was denied a fair trial due to improper admission of hearsay testimony, and denied the effective assistance of counsel based on his attorney's failure to object to admission of such evidence at trial. See Doc. No. 398. Petitioner additionally asserts that the indictment against him was defective, and that the Court therefore lacked jurisdiction. Petitioner raised these same issues in his prior motions in this Court, all of which have been transferred to the United States Court of Appeals for the Sixth Circuit for authorization for filing a successive petition. See Doc. No. 381, 356, 354. As previously discussed, this Court is without authorization to consider such claims unless petitioner obtains authorization for filing a successive petition from the United States Court of Appeals for the Sixth Circuit. See Gonzalez v. Crosby, supra; 28 U.S.C. 2244(b)(3)(A); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) ( per curiam). These motions, Doc. Nos. 398, 408, therefore are hereby TRANSFERRED to the United States Court of Appeals for the Sixth Circuit for authorization for filing a successive petition.
In view of the history of this case, and petitioner's repetitive filings, petitioner will no longer be permitted to file continued pleadings in this case without payment of the filing fee. The United States Court of Appeals for the Sixth Circuit affirmed petitioner's underlying criminal convictions and sentence on November 22, 2000. United States v. Gordon, 2000 WL 1785905 (6th Cir. November 22, 2000). On November 27, 2001, petitioner filed his first motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. Nos. 241, 247, 261. On September 30, 2002, this Court denied petitioner's § 2255 petition. Doc. No. 267. On September 17, 2003, and September 24, 2003, petitioner again filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Doc. Nos. 284, 286. On September 30, 2003, the Court transferred these motions to the United States Court of Appeals for the Sixth Circuit as successive petitions. Doc. No. 287. Since that time, petitioner has filed, inter alia, multiple motions attempting to challenge his convictions and sentence, all of which have been denied or transferred to the United States Court of Appeals for the Sixth Circuit as successive. See, e.g., Doc. Nos. 295, 298, 301, 302, 304, 306, 314, 342,343,345, 348, 350, 351-353, 358-360. The United States Court of Appeals for the Sixth Circuit has subsequently denied request for authorization for filing a successive petition. Doc. Nos. 293, 383 and affirmed this Court's orders. Doc. Nos. 341, 410.
Petitioner has been cautioned that the continued filing of frivolous motions repeating the same allegations, or requesting relief from judgment or reconsideration on the same grounds constitutes abuse of judicial process, and may result in imposition of sanctions against him. Opinion and Order, July 29, 2008, Doc. No. 381. While courts are reluctant to "close the courthouse door completely on the writ of habeas corpus," sanctions may be imposed on abusive filers In re Walker, 238 F.3d 426, unpublished, 2000 WL 1517155 (6th Cir. August 4, 2000).
See, e.g., Lowe v. Pogue, 526 U.S. 273, 273-74 (1999) (after prisoner filed 31 patently frivolous petitions for certiorari and other extraordinary writs, Court denies in forma pauperis status to abusive prisoner and advises clerk to refuse to file future filings of this same nature unless accompanied by filing fee); In re Anderson, 511 U.S. 364, 365-66 (1994) (same sanction imposed after 22 frivolous filings); In re Demos, 500 U.S. 16, 16-17 (1991) (same sanction imposed after 32 frivolous filings); In re Sindram, 498 U.S. 177, 180 (1991) (same sanction imposed after 43 frivolous filings); In re McDonald, 489 U.S. 180, 183-85 (1989) (same sanction imposed after 73 frivolous filings); Maxberry v. S.E.C., 879 F.2d 222, 223-24 (6th Cir. 1989) (same sanction imposed after 15 prior appeals were dismissed as unsubstantial and 3 others dismissed for lack of jurisdiction). . . . [P]risoners who persist in flooding the courts with frivolous and repetitive actions that waste the courts' time and resources . . . risk being sanctioned for doing so, including losing their ability to proceed in forma pauperis with respect to their future civil actions, as well as being subjected to a substantial fine. As the Supreme Court noted in McDonald, 489 U.S. at 184, "Every paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources. A part of the Court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice. The continual processing of petitioner's frivolous requests for extraordinary writs does not promote that end."Id.; see also Halliburton v. United States, 59 Fed.Appx. 55, unpublished, 2003 WL 2717154 (6th Cir. February 4, 2003) ("[D]istrict court did not abuse its discretion in imposing the sanction pursuant to the court's inherent power to curb bad faith litigation"), citing Chambers v. NASCO, Inc., 501 U.S. 32, 41-55 (1991); First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 511-12 (6th Cir. 2002).
Pursuant to its inherent powers, a court in the Sixth Circuit may impose sanctions to curb vexatious, bad faith litigation if the claims are meritless, the litigant knew or should have known that the claims are meritless, and the claims were filed for an improper purpose. First Bank of Marietta, 307 F.3d at 512 519. All three factors are met . . . [where the petitioner] was expressly advised that he could not file any more claims challenging his judgment of conviction and sentence without first obtaining permission to do so from the Court of Appeals. Filing the claims without authorization in the face of this expressed advice and clear warning of a sanction if done anyway constitutes bad faith conduct that was properly sanctioned[.]Id. Such are the circumstances here.
Therefore, the Clerk is DIRECTED to refuse further filings in this case without payment of the filing fee. Petitioner is advised that he may be subject to imposition of a fine for frivolous filings submitting the same claims for relief or further successive habeas corpus petitions filed without first obtaining authorization from the United States Court of Appeals for the Sixth Circuit.
For all the foregoing reasons, Petitioner's motions to clarify and correct the record, Doc. Nos. 393, 395, to include the exhibits attached thereto, and to correct the record to reflect that the exhibits filed in Doc. No. 388, support his October 10, 2008, motion to reopen the appeal, Doc. No. 387, hereby are GRANTED.
Petitioner's remaining motions, Doc. Nos. 387, 390, 392, are DENIED. His motion for a writ of coram nobis and 398, 408, are TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a successive petition.
IT IS SO ORDERED.