Brown v. Braman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY TYRONE BROWN,

Petitioner,

CASE NO. 2:21-CV-12058

v. HONORABLE VICTORIA A. ROBERTS

JAMES CORRIGAN, WARDEN,

Respondent.

/

OPINION AND ORDER DENYING PETITIONER’S MOTIONS FOR RELEASE

(ECF NOS. 27, 29), RELIEF FROM JUDGMENT (ECF NO 28), APPOINTMENT

OF COUNSEL (ECF NO. 30), AND APPLICATION TO PROCEED WITHOUT

PREPAYING COSTS (ECF NO. 31); AND DENYING A CERTIFICATE OF

APPEALABILITY AND LEAVE TO FILE AN APPEAL IN FORMA PAUPERIS

In August 2021, Petitioner Anthony Tyrone Brown, a prisoner currently confined

at the Chippewa Correctional Facility in Kincheloe, Michigan, filed a pro se petition for

habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) This Court dismissed the

petition for lack of merit and denied Petitioner a certificate of appealability. (ECF No.

19.) Petitioner appealed the decision to the Sixth Circuit Court of Appeals, but the circuit

court denied Petitioner a certificate of appealability and denied his petition for rehearing.

(ECF Nos. 24, 26.)

All the motions and the IFP application are denied. The Court also declines to

grant a certificate of appealability or leave to appeal in forma pauperis.

Background

A Wayne County Circuit Court jury convicted Petitioner on two counts of first-

degree criminal sexual conduct (CSC-I), Mich. Comp. Laws § 750. 520b(1)(b); and one

count of third-degree criminal sexual conduct (CSC-III), Mich. Comp. Laws § 750. 520d,

for sexually abusing his stepdaughter while she was a teenager. People v. Brown, No.

337223, 2018 WL 4573233, at *1 (Mich. Ct. App. Sept. 13, 2018). Following exhaustion

of his claims in the state courts, Petitioner filed a pro se petition for a writ of habeas

corpus in this Court. (ECF No. 1.) He claimed the state trial court violated his Sixth

Amendment right to counsel of his choice and that he was denied a fair trial because

the trial court judge failed to recuse himself. The Court denied the petition on

September 14, 2022. (ECF No. 19.)

Petitioner filed a notice of appeal. The Sixth Circuit denied him the certificate of

appealability required to appeal the dismissal of a habeas petition. (ECF No. 24.) On

March 21, 2023, that court also denied Petitioner’s request for a rehearing of its order.

(ECF No. 26.)

Now before this Court are five pleadings Petitioner filed since the Sixth Circuit

entered its orders. These include two motions for release pending trial or appeal (ECF

Nos. 27, 29), a motion for relief from judgment (ECF No. 28), a motion for appointment

of counsel (ECF No. 30), and an application for leave to appeal without prepaying fees

and costs in this Court. (ECF No. 31.)

Petitioner’s motion for relief from judgment charges fraud on the court, starting

with an allegation of altered transcripts from his state court criminal proceedings. (ECF

No. 28, PageID.2409.) He also attacks the motives of two stepdaughters (including the

victim) who testified against him, and describes “50+ false, perjur[ed,] and inconsistent”

statements by police, an investigator for the state attorney general’s office, and the

victim. (Id. at PageID.2410.)

An affidavit attached to one of Petitioner’s motions for release asks the state

attorney general to review audio and video recordings of a January 18, 2017, hearing

on trial counsel’s motion to withdraw. (ECF No. 27, PageID.2376.) Petitioner asserts the

transcript of the hearing was altered and that the true record demonstrates his right to

counsel was violated. (Id. at 2377.) Other exhibits include handwritten excerpts from the

victim’s trial testimony, extensively annotated with Petitioner’s explanation how the

statements are false and how they prove his attorney did not act in his best interests.

(Id. at PageID.2380-91.) Petitioner also challenges the motives of another stepdaughter

who testified against him. (Id. at PageID.2397-98.) Finally, he attaches photos and

letters from his wife and other daughters, arguing they demonstrate his innocence. (Id.

at PageID.2399-2406.)

Petitioner notes that he “maintains his innocence and [has] been wrongfully

convicted.” (ECF No. 30, PageID.2417.) He asserts in his motions that he will continue

to suffer irreparable harm because his “civil rights to liberty” have been “egregiously

violated.” (See id.; ECF No. 27, PageID.2376; ECF No. 28, PageID.2410.)

Discussion

Petitioner’s case is closed and his appeal concluded in the Sixth Circuit. No

further proceedings are pending in either court. When the issues presented in a case

are “no longer ‘live[,]’” the case is moot. Ford v. Wilder, 469 F.3d 500, 504 (6th Cir.

2006) (citing Powell v. McCormack, 395 U.S. 486, 496 (1969)). “A federal court has no

authority to render a decision upon moot questions or to declare rules of law that cannot

affect the matter at issue.” United States v. City of Detroit, 401 F.3d 448, 450 (6th

Cir.2005) (citation omitted). Because Petitioner’s case is closed, his pending motions for

release and appointment of counsel and his application for leave to proceed in forma

pauperis are moot and are denied.

Petitioner’s remaining motion seeking relief from judgment pursuant to Fed. R.

Civ. P. 60(b)(3) and (d)(3), merits analysis beyond the question of mootness. Federal

Rule of Civil Procedure “60(b) allows a party to seek relief from a final judgment, and

request reopening, under a limited set of circumstances including fraud, mistake, and

newly discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Because

Petitioner’s motion does not meet the standards for Rule 60, however, it cannot provide

a basis to reopen Petitioner’s case to revive the issues that are “no longer live.” Ford,

469 F.3d at 504.

The Sixth Circuit

define[s] fraud on the court as conduct: 1) on the part of an officer of the

court; that 2) is directed to the judicial machinery itself; 3) is intentionally

false, willfully blind to the truth, or is in reckless disregard for the truth; 4) is

a positive averment or a concealment when one is under a duty to disclose;

and 5) deceives the court.

Carter v. Anderson, 585 F.3d 1007, 1011 (6th Cir. 2009) (citing Demjanjuk v. Petrovsky,

10 F.3d 338, 348 (6th Cir. 1993)). A litigant claiming fraud on the court “has the burden

of proving the existence of fraud on the court by clear and convincing evidence.” Id.

(citing Info-Hold, Inc. v. Sound Merchandising, Inc., 538 F.3d 448, 454 (6th Cir. 2008)).

Petitioner has not met the criteria to demonstrate fraud on the court, much less

by the clear and convincing standard. His most significant argument is that the victim

and another of his stepdaughters lied in their testimony against him. However, the

“alleged perjury of a witness” will not support an action for fraud on the court. Rodriguez

v. Honigman Miller Schwartz & Cohn LLP, 465 F. App'x 504, 510 (6th Cir. 2012) (citing

H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1118 (6th

Cir.1976)); accord, Computer Leasco, Inc. v. NTP, Inc., 194 F. App'x 328, 333 (6th Cir.

2006)). Perjury does not present a case of extrinsic fraud, and it does not prevent “the

opposing party . . . from fully presenting his case . . .” Buell v. Anderson, 48 F. App'x

491, 498 (6th Cir. 2002) (citation omitted).

“‘An officer of the court’ must commit fraudulent conduct for a fraud-on-the-court

claim to be legally cognizable.” Preferred Properties, Inc. v. Indian River Ests., Inc., 214

F. App'x 538, 540 (6th Cir. 2007) (citing Demjanjuk, 10 F.3d at 348). That is, “the

individual accused of perpetrating the fraud must have directly interacted with the court

to prevent an adversary from presenting his case fully and fairly.” Computer Leasco,

Inc., 194 F. App’x at 338. Petitioner does not provide clear and convincing evidence that

an “officer of the court” took a position that was intentionally false or willfully blind to the

truth, or engaged in conduct that prevented him from fairly presenting his own defense.

Moreover, Rule 60(b)(3) requires the moving party to “‘show that the adverse

party committed a deliberate act that adversely impacted the fairness of the relevant

legal proceeding [in] question.’” Info-Hold, 538 F.3d at 455 (emphasis added). The

relevant legal proceeding is Petitioner’s habeas case. The testimony and other evidence

invoked by Petitioner pertain to his state court criminal trial and appellate proceedings,

not to the habeas petition.

As to the final criterion, the Court has not been deceived by any of the false

evidence Petitioner raises, in part because it has no bearing on the habeas action.

Accordingly, none of Petitioner’s evidence supports finding a fraud on this Court.

Rule 60(d)(3), on which Petitioner also relies, states that it “does not limit a

court's power to . . . set aside a judgment for fraud on the court.” The Sixth Circuit

applies the same test for “fraud on the court” for both Rule 60(d)(3) and (b)(3) motions.

See, e.g., Daniels v. Jackson, No. 20-2090, 2021 WL 1923060, at *2 (6th Cir. Mar. 9,

2021). As explained above, Petitioner has not met this standard.

Furthermore, relief under 60(d)(3) is only available “to prevent a grave

miscarriage of justice.” Mitchell v. Rees, 651 F.3d 593, 595 (6th Cir. 2011) (quoting

United States v. Beggerly, 524 U.S. 38, 47 (1998)). This “’stringent’ and ‘demanding’

standard” requires a petitioner to “make a strong showing of actual innocence.” Id. at

595–96 (citing Calderon v. Thompson, 523 U.S. 538, 557–58 (1998)) (other citations

omitted).

In the habeas context, establishing actual innocence requires a petitioner to

“demonstrate that, in light of all the evidence, it is more likely than not that no

reasonable juror would have convicted him . . .” Wooten v. Cauley, 677 F.3d 303, 307

(6th Cir. 2012) (quoting Bousley v. United States, 523 U.S. 614, 623-24 (1998)). And

“actual innocence means factual innocence, not mere legal insufficiency.” Id. (citing

Bousley, supra).

Petitioner does assert his innocence, but in a conclusory manner. He

emphasizes the inconsistency and falsity of the victim’s testimony as well as the unfair

circumstances surrounding the denial of his choice of counsel. But Petitioner does not

make a strong showing of innocence or establish that his circumstances rise to a

miscarriage of justice.

In sum, Petitioner does not demonstrate his entitlement to relief from judgment

pursuant to Rule 60(b)(3) or (d)(3). His case will not be reopened.

As a final note, Petitioner observes in his motion for relief from judgment that

“since March 21, 2023, [he] has not been notified of any review, only a denial for a

rehearing . . . on his COA.” (ECF No. 28, PageID.2409-10.) In the absence of a petition

for certiorari in the United States Supreme Court, which to the Court’s knowledge

Petitioner has not filed,1 Petitioner should expect no further review of his habeas case.

Because the Sixth Circuit Court of Appeals denied him a certificate of appealability, his

case is closed.

Certificate of Appealability and In Forma Pauperis status on appeal

Before a habeas petitioner may appeal the denial of a motion for relief from

judgment, the petitioner must obtain a certificate of appealability (COA). 28 U.S.C. §

2253(c)(1)(B); United States v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007) (requiring a

certificate of appealability as a prerequisite for a habeas petitioner's appeal of the denial

of a Rule 60(b) motion). To obtain a COA, a petitioner must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). In the context of a Rule 60(b) motion, “a petitioner

must demonstrate that jurists of reason would find it debatable whether the district court

properly denied the Rule 60(b) motion, and whether the underlying habeas petition

states a valid claim of the denial of a constitutional right.” Kelly v. Hoffner, No. 16-1743,

2017 WL 6003435, at *1 (6th Cir. Mar. 6, 2017) (citing Slack v. McDaniel, 529 U.S. 473,

1 A search of the United States Supreme Court docket reveals only a petition for

certiorari filed in 2019 following Petitioner’s direct appeal in the Michigan Court of

Appeals. See

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19

-6381.html. See also Brown v. Michigan, 140 S. Ct. 840, reh’g den., 140 S. Ct. 2558

(2020).

484 (2000)). The Court denies Petitioner a certificate of appealability because jurists of

reason would not find the denial of the Rule 60(b) motion (or any of Petitioner’s other

motions) to be debatable.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not

be taken in good faith. Accordingly, the Court denies Petitioner leave to proceed in

forma pauperis on appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

Conclusion and Order

The Court DENIES Petitioner’s motions for:

 Release pending trial (ECF No. 27),

 Relief from judgment (ECF No 28),

 Release pending appeal (ECF No. 29),

 Appointment of counsel (ECF No. 30), and his

 Application to proceed without prepaying costs on appeal (ECF No. 31).

The Court also DENIES a certificate of appealability and leave to file an appeal in

forma pauperis.

This case remains CLOSED.

ORDERED.

s/ Victoria A. Roberts

VICTORIA A. ROBERTS

Date: 8/31/2023 UNITED STATES DISTRICT JUDGE