# Penny v. Brown

> District Court, E.D. Michigan · August 12, 2025

URL: https://www.frixlaw.com/law-library/cases/11119171

## Case

- **Court:** District Court, E.D. Michigan
- **Decided:** August 12, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11119171

## How later opinions describe it (automated extraction)

- holding that a motion under Rule 60(b)(1) is appropriate where a party claims a court overlooked a material argument

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES R. PENNY,

Plaintiff, Case No. 20-10359
Honorable Laurie J. Michelson
v.

MIKE BROWN,

Defendant.

OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION
[11]
James R. Penny is serving a life sentence for second-degree murder in
connection with the 1992 stabbing death of his girlfriend. He seeks relief from the
Court’s 2020 order (ECF No. 5) transferring his 28 U.S.C. § 2254 habeas petition to
the Sixth Circuit as a second or successive petition. For the reasons below, the Court
DENIES Penny’s motion (ECF No. 11).

In 1996, Penny filed his first habeas corpus petition in this Court. See Penny
v. Burke, No. 96-10442 (E.D. Mich. filed Dec. 11, 1996). Judge Robert H. Cleland
denied that petition on the merits in 1997. Penny, No. 96-10442, ECF No. 18; see also
Penny, No. 96-10442, ECF No. 29 (denying certificate of appealability); Penny v.
Burke, No. 97-2213 (6th Cir. June 3, 1998), ECF No. 11 (same). The Sixth Circuit
later denied Penny’s 2002, 2003, and 2011 motions to file successive habeas petitions.
In re Penny, No. 02-1416 (6th Cir. Nov. 1, 2002), ECF No. 15; In re Penny, No. 03-
1933 (6th Cir. Dec. 1, 2003), ECF No. 7; In re Penny, No. 10-1230 (6th Cir. Jan. 19,
2011), ECF No. 28.
In 2020, Penny filed another § 2254 petition (ECF No. 1), which this Court

transferred to the Sixth Circuit pursuant to 28 U.S.C. § 1631 for determination of
whether it was a second or successive petition within the meaning of 28 U.S.C.
§ 2244(b) (ECF No. 5). (See id. at PageID.34–35 (“Penny could have raised his current
claims in his previous petition. The earlier habeas petition was dismissed on the
merits. Therefore, the current petition is ‘second or successive’ to the 1996 petition
and Penny was required to seek preauthorization from the Court of Appeals before
filing the petition here, which he did not do.”).) The Sixth Circuit in turn denied

Penny’s motion for authorization to file a second or successive habeas petition,
concluding that the petition “d[id] not rely on a new rule of constitutional law” and
that Penny’s actual innocence claim was based on facts known to Penny at the time
of his trial.1 In re Penny, No. 21-1122 (6th Cir. Aug. 24, 2021), ECF No. 10, PageID.2;
see 28 U.S.C. § 2244(b)(2) (providing the bases on which a petitioner may be granted
permission to file a second or successive habeas petition).

Penny now seeks relief from the Court’s transfer order on the ground that the
Court failed to decide his actual innocence claim. (ECF No. 11.) Although Penny titles
the motion “Motion for Reconsideration,” the Court construes it as a motion for relief

1 Penny’s assertion of actual innocence was based on a claim of self-defense.
Penny asserted “that the victim attacked him in his home by throwing wine bottles
at him, that they fought, and that he stabbed her to death while defending himself.”
In re Penny, No. 21-1122 (6th Cir. Aug. 24, 2021), ECF No. 10, PageID.2.
from judgment under Federal Rule of Civil Procedure 60(b). Indeed, Penny cites Rule
60(b) throughout. And this Court’s local rules provide that “[p]arties seeking
reconsideration of final orders or judgments must file a motion under Federal Rule of

Civil Procedure 59(e) or 60(b),” rather than a motion for reconsideration under Local
Rule 7.1(h). E.D. Mich. LR 7.1(h)(1).
Penny “must overcome two procedural hurdles: (1) his Rule 60(b) motion must
not be a second or successive habeas petition prohibited by AEDPA and (2) he must
satisfy the requirements of Rule 60(b).” Mitchell v. Rees, 261 F. App’x 825, 828 (6th
Cir. 2008). He fails at the second requirement.

When a habeas petitioner files a Rule 60(b) motion, the “threshold inquiry is
whether [the petitioner’s] Rule 60(b) motion is a ‘true’ Rule 60(b) motion or simply a
‘second or successive’ habeas application cloaked in Rule 60(b) garb.” Franklin v.
Jenkins, 839 F.3d 465, 473 (6th Cir. 2016) (quoting Gonzalez v. Crosby, 545 U.S. 524,
531 (2005)). This threshold inquiry is necessary because the Court may not adjudicate
the merits of a second or successive habeas petition without prior authorization from

the Sixth Circuit. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive
application . . . is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.”); Franklin, 839 F.3d at 475 (“[D]istrict courts lack jurisdiction to
consider ‘second or successive’ habeas applications without prior authorization from
the appropriate Court of Appeals . . . .”).
A filing otherwise styled as a Rule 60(b) motion is treated as a successive
habeas petition within the meaning of 28 U.S.C. § 2244(b) if it “challenges the same
conviction challenged in a prior petition and the prior petition was decided on the

merits.” (ECF No. 5, PageID.34 (citing In re Garner, 612 F.3d 533, 535 (6th Cir.
2010))); Gonzalez, 545 U.S. at 538 (“[A] Rule 60(b)(6) motion in a § 2254 case is not to
be treated as a successive habeas petition if it does not assert, or reassert, claims of
error in the movant’s state conviction.”). In contrast, a “true” 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.” Gonzalez, 545 U.S.
at 532; see Mitchell, 261 F. App’x at 829 (explaining that a movant has filed a proper

Rule 60(b) motion, rather than successive habeas petition, if he “assert[s] that a
previous ruling which precluded a merits determination was in error—for example,
a denial [of a habeas petition] for such reasons as failure to exhaust, procedural
default, or statute-of-limitations bar”). Put another way, a petitioner has filed a “true”
Rule 60(b) motion “[w]hen no ‘claim’ is presented,” and “neither the motion itself nor
the federal judgment from which it seeks relief substantively addresses federal

grounds for setting aside the movant’s state conviction.” Gonzalez, 545 U.S. at 533.
Penny’s argument that the Court failed to consider his actual innocence claim
constitutes a “true” 60(b) claim because it attacks the integrity of the federal habeas
proceedings. See Jackson v. Lafler, No. 07-11808, 2013 WL 450935, at *1 (E.D. Mich.
Feb. 6, 2013) (“Petitioner’s allegation that this Court failed to consider one or more of
his claims would constitute a ‘true’ 60(b) claim that attacks the integrity of the habeas
proceedings and would not be considered a successive habeas petition.”); see also Tyler
v. Anderson, 749 F.3d 499, 508 (6th Cir. 2014) (assuming without deciding that
movant’s argument that the district court failed to consider his habeas claim was a

true Rule 60(b) motion). The motion, therefore, is not subject to the jurisdictional bar
of § 2244(b).

“Although [Penny’s] Rule 60(b) motion does not constitute a second or
successive habeas petition, . . . he still must satisfy the requirements and limitations
of Rule 60(b) to prevail.” Mitchell, 261 F. App’x at 829. He faces a high bar in doing
so. See, e.g., G.G. Marck & Assocs. v. N. Am. Invs., Corp., 465 F. App’x 515, 517 (6th

Cir. 2012) (“[Sixth Circuit] case law sets a high bar for granting relief under Rule
60(b).”); McAlpin v. Lexington 76 Auto Truck Stop, Inc., 229 F.3d 491, 502–03 (6th
Cir. 2000) (“Relief from a final judgment under Rule 60(b) is an ‘extraordinary remedy
that is granted only in exceptional circumstances.’”); Info-Hold, Inc. v. Sound Merch.,
Inc., 538 F.3d 448, 454 (6th Cir. 2008) (“[T]he party seeking relief under Rule 60(b)
bears the burden of establishing the grounds for such relief by clear and convincing

evidence.”).
Relevant here, Rule 60(b)(1) allows a district court to grant relief from a final
judgment based upon a “mistake,” which includes “any type of mistake or error on
the part of the court.” Barrier v. Beaver, 712 F.2d 231, 234 (6th Cir. 1983). Penny
alleges that the Court made a mistake by failing to decide one of his claims. See, e.g.,
Justus v. Clarke, 78 F.4th 97, 109 (4th Cir. 2023) (holding that a motion under Rule
60(b)(1) is appropriate where a party claims a court overlooked a material argument).
But a Rule 60(b)(1) motion must be filed “no more than a year after the entry

of the judgment.” Fed. R. Civ. P. 60(c)(1); see In re G.A.D., Inc., 340 F.3d 331, 334 (6th
Cir. 2003) (“Regardless of circumstances, no court can consider a motion brought
under Rule 60(b)(1), (2), or (3) a year after judgment.”). Here, over five years passed
between the time the Court transferred Penny’s successive petition to the Sixth
Circuit and the filing of his pending motion, and nearly four years have passed since
the Sixth Circuit denied authorization for Penny to proceed with that successive
petition. Thus, Penny’s motion seeking relief under Rule 60(b)(1) is time-barred.

Further, to the extent that the judgment from which Penny seeks relief is the
Sixth Circuit’s decision denying him authorization to file a second or successive
petition, this Court may not review or reverse a decision of the Sixth Circuit. See
Hargrave-Thomas v. Yukins, 450 F. Supp. 2d 711, 720 (E.D. Mich. 2006) (“This Court,
as an inferior court, is plainly subject to the review of the Court of Appeals for the
Sixth Circuit. As such, by its very nature, this Court has no authority to reconsider

the judgment of an appellate court. Restated, the very essence of the relationship
between this Court and the Court of Appeals for the Sixth Circuit precludes this
Court from altering any decision made by the Court of Appeals.” (citing 28 U.S.C.
§ 1291)). A district court also lacks the authority to reinstate a petitioner’s second or
successive habeas petition after the Court of Appeals declines to grant leave to file
such a petition. See, e.g., White v. Carter, 27 F. App’x 312, 313–14 (6th Cir. 2001).
Accordingly, Penny’s motion for reconsideration (ECF No. 11) is DENIED.
SO ORDERED.

Dated: August 12, 2025

s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11119171. Public record. Not legal advice.