Opinion
CASE NO. 2:05-cv-241.
August 25, 2008
OPINION AND ORDER
On March 14, 2006, the Court entered final judgment dismissing the instant habeas corpus petition. Doc. No. 23. On June 6, 2006, the Court denied petitioner's request for a certificate of appealability. Doc. No. 31. On November 6, 2006, the United States Court of Appeals for the Sixth Circuit denied petitioner's request for a certificate of appealability. Doc. No. 32. On May 2, 2007, the United States Supreme Court denied petitioner's petition for a writ of certiorari. Doc. No. 34. This matter now is before the Court on petitioner's January 10, 2008, motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(5), (6). Doc. No. 36. Respondent has not responded to petitioner's motion, despite being directed to do so. See Doc. No. 37. For the reasons that follow, petitioner's motion, Doc. No. 36, is DENIED.
Petitioner requests relief from this Court's March 14, 2006, entry of final judgment dismissing his habeas corpus petition and the June 6, 2006, denial of his request for a certificate of appealability pursuant to Federal Rule of Civil Procedure 60(b), which provides:
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
Federal Rule of Civil Procedure 60(b).
Petitioner contends that relief from judgment is warranted because the Court "misapplied a state court procedural default rule" and improperly dismissed his Double Jeopardy claims as procedurally defaulted. See id. Petitioner also again argues at length regarding the merits of these claims. Finally, petitioner argues that Ohio's Appellate Rule 26(B) is neither an adequate nor independent state rule upon which to foreclose federal habeas corpus review of his ineffective assistance of counsel claims. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); Motion for Relief from Judgment, at 29 n. 8. None of these arguments are persuasive.
In habeas corpus claim one, petitioner asserts that his convictions violate the Double Jeopardy Clause. In claim two, petitioner asserts the ineffective assistance of trial and appellate counsel due to his attorneys' failure to protect his double jeopardy rights. See Petition.
As a preliminary matter, petitioner's additional arguments on the merits of his claims may not properly be addressed under Rule 60(b) without authorization from the United States Court of Appeals for the Sixth Circuit for filing a successive petition. See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).
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 *532 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 **2648 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).Id. That said, petitioner's argument that the Court improperly dismissed his claims as procedurally defaulted is appropriately brought under Rule 60(b) as a challenge to a "defect in the integrity of the federal habeas proceeding." Id., at 532 n. 4. Still, petitioner has raised no reason to justify relief from judgment in this case.
In habeas corpus claim one, petitioner asserts that his convictions violate the Double Jeopardy Clause. The Court dismissed this claim as procedurally defaulted because petitioner failed to raise the claim on direct appeal. As cause for his procedural default, petitioner asserts the ineffective assistance of appellate counsel. See Report and Recommendation, at 20-21. Petitioner first presented his ineffective assistance of counsel claim to the state courts in a July 6, 2004, successive application to reopen the appeal under Ohio Appellate Rule 26(B). See id., at 21. The state appellate court rejected such claim as barred under Ohio's doctrine of res judicata, and the Magistrate Judge therefore recommended dismissal of claim one due to petitioner's failure to establish cause for his procedural default. See id., at 22.
Petitioner now contends that the state appellate court improperly applied the rule of res judicata. Citing Marcum v. Ohio Adult Parole Authority, 1:02-cv-425 (S.D. Ohio Western division), Exhibit D to Motion for Relief from Judgment, petitioner asserts that Ohio's Rule 26(B) fails the Maupin test. This Court need not address petitioner's argument, however, since his ineffective assistance of counsel and Double Jeopardy claims ultimately were dismissed as plainly without merit. See Opinion and Order, March 14, 2006, Doc. No. 23. In view of the foregoing, the record fails to reflect relief from final judgment of dismissal of this habeas corpus petition is warranted. Petitioner has likewise failed to raise any issue justifying relief from the denial of petitioner's request for a certificate of appealability.
For all of the foregoing reasons, petitioner's motion for relief from judgment, Doc. No. 36, is DENIED.