Petition for Writ of Certiorari — Jesse Lee Coddington, Petitioner v. John Davids, Warden

Supreme Court briefJan 22, 2019

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No.

Supreme Court, U.S.

FILED

JAN 2 2 2019

IN THE

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

Jesse Lee Coddinqton

(Your Name)

— PETITIONER

vs.

Martin Makel, Uarden,

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court of Appeals For The Sixth Circuit______

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

£

PETITION FOR WRIT OF CERTIORARI

Jesse Lee Coddington

(Your Name)

R.fl. Handlon Correctional Facility

(Address)

172B ti). Blueuiater HUY.

Ionia, Michigan 4SB46

(City, State, Zip Code)

(Phone Number)

*

QUESTION(S) PRESENTED

1.

According

Michigan's

to

Cone

Court

Rule

procedurally default a

V.

Bell,

6.508

556

U.S.

449,

can

(D)(2)

be

used

to

Petitioner's claims

from federal

habeas adjdication ?

^ Does

federal Rule of civil procedure

60(b)

1

through

6

apply equally to federal habeas corpus?

3.Can a State create a court rule that shall abridge the

privileges

or

immunities

of

citizens

of

the

United

States ?

4.

Does the Fourteenth Amendment,

Sec. 1. of the United

States Constitution apply equally to all citizens of the

United States?

5.

When

collateral

review

is

the

first

opportunity

in

Michigan for Petitioner to raise a claim of ineffective

assistance of appellate counsel, can MCR 6.508 (D)(3) be

used to procedurally bar this issue?

LIST OF PARTIES

[X ] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

H

TABLE OF CONTENTS

V

OPINIONS BELOW

JURISDICTION

%

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

7

STATEMENT OF THE CASE

10

REASONS FOR GRANTING THE WRIT

kH

CONCLUSION

INDEX TO APPENDICES

APPENDIX A

I

APPENDIX B J

I

APPENDIX C

X /9

APPENDIX D

7,7 n

APPENDIX E

7, ^

APPENDIX F

tytyt

^5

TABLE OF AUTHORITIES CITED

Ackermann v United States, 340 US 193, 199 (1950)

25

Aohaaai v Holden A Co.. 92 F.R.D. 98, 99 (D Mbbs. 1981)...................

25

American Iron & steel Inst, v EPA, 560 F.2d 589,596 (3d Clr. 1977)

8

Andrews v Rapel.le, 2011 US Diet. Lexis 69567

21

Barefoot v Estelle. 463 US 880, 893, n.4, 103 S Ct 3383, 3383 n.4, 77 L Ed 2d

1090 (1983)

17

Bennett v Whitley, 41 F*3d 1581, 1582 (CAS 1994)

12

Brecheen v Reynolds. 41 F.3d 1343, 1358 (CA10 1994)

12,26

Brook v Walker. 82 F.R.D. 95, 96 (D Mess. 1979)....

25

Buck v Davis. 137 S.Ct. 759 (February 22,2017)...........................

27

886 F.2d 1526, 1530 (9th Cir. 1989)

8

Bryant v Ford Motor Co

Calderon v United States Plat. Ct • > for the E. Diet, of Cal • * 96 F.3d 1126

22

(9th Cir. 1996)

Carpenter v Mohr, 163 F.3d 938 (6th Cir. 1998)

23,26

Cone v Bell. 556 US 449 (2009)............................

Passim

Davis v Laurence Cedarhurst Bank, 206 F.2d 388, 389 (2d Cir.) cert denied, 346

US 877, 74 S.Ct 130, 98 L.Ed. 384 (1953)......... ....................... ........................ 8,9

Davis v Mechsler. 263 US 22, 24, 68 L.Ed. 143, 44 S.Ct. 13 (1923).............

22

Dave v Attorney Gen, of N.Y., 696 F.2d 186, 194 (2d Cir. 1982)...................

14

Dorsey v Solomon. D.C. Md * * 435 F.Supp. 725, 733............................................

20

Duncon v Henry. 513 US 364, 366, 115 S.Ct 887, 130 L.Ed. 2d 965 (1995)...

16

Fackelman v Bell. 564 F.2d 734, 736 (5th Cir (1977).......................................

27

Ford v Georgia. 498 US 411, 423-24, 11 S.Ct. 850, 112 L.Ed. 2d 935 (1991) • • • 22

Gonzalez v Crosby, 125 S.Ct. 2641 (2005)........................................................

18

Gonzales v Elo, 233 F.3d 348 (CA6, 2000)

19

Graham y Collins. 5D6 US 467, 113 S.Ct:. 892; 122 L.Ed. 2d 260 (1993)

10

Gullmette v Homes, 624 F.3d 286 (6th Clr. 2010)..........................

Passim

Hannah v Cnnlav. 49 F.3d. 1193, 1196 (6th Cir. 1995)..................... .

14

Hieka v Straub. 377 F«3d 538, 558 n.17 (6th Clr. 2004)........

Passim

Holliday v Uooderd, 655 F.Supp. 1245,.......*..

22

Jackson v Edwards. 404 F.3d 612 (2d Cir. 2005)

15,25

James v Kentucky. 466 US 341, 348-51, 104 S.Ct. 1830, 80 L.Ed. 346 (1984) » • • 22

Klapportt v United States. 335 US 601, 613-14, 69 S.Ct. 384 (1949)

Larebriqht v Steuart. 241 F.3d. 1201, 1206 (CA9 2001)..........

,27

12,26

Lonchor v Thomas, 517 US 314, 324, 116 S.Ct. 1293 134 L.Ed.2d 440 (1996).18,23

Lubarda v Trippett. 211 F.3d 1004 (CA6, 2000)...,...............

19

Lyons v Crawford. 232 F.3d 666, 670 n.3 (9th Cir. 2000),.,...

14

Magana v HofbBuar, 263 F.3d 542 (6th Cir. 2001).......... .

23,26

Hanning v Alexander. 912 F.2d 878, 881 (*663) (6th Cir, 1990)

14

McCandlass v Vaughn. 172 F.3d 255 (3d Cir, 1999).............

14

McGsshick v Choucair, 72 F.2d 62, 63 (7th Clr. 1995).............

8

Murray v Carrier.

477 US 478, 490-492, 106 S.Ct. 2690 91 L.Ed. 2d 397

(1986)

Northrldpe Church v Charter Tup. of Plymouth. 647 F.3d 606,

9,21,26

23

0»Sullivan v Boarckel. 526 US 838,845,119 S.Ct. 1728, 144 L.ED. 2d 1 (1999).14

Pape v Frank. 343 F.3d 901, 907 (CA7 2003).................... ............................. 12,26

People v Jacobs. 27 Cal, App. 3d 246, 103 Cal. Rptr. 536, 543; 14th Amend • » US

Const

20

People y Pickens. 446 Mich. 298 (1994)

10,19

People v Read. 535 N.U.2d 496 (1995)..

22

People v Reed. 198 Mich. App. 639 (1993)

6,13

Phillips v Houk, 587 Fad. Appx 868 (2014)

12

Picard v Connor, 404 US 270, 275, 92 S.Ct. 509, 30 L.Ed 2d 438 (1971)

Passim

Richardson, 251 G,A..2d 222, 59 Cal. Rptr. 323, 334

20

Rogers v Houias. 144 F,3d 990 (CAS, 1998)

19

Ross v Lundy, 45S US 509, 522, 102 S.Ct. 1198, 71 L.Ed 2d 379 (1902)

14

Rufa v Inmates of Suffolk County Jail. 502 US 367, 303, 112 S.Ct. 740, 762 116

L.Ed. 2d 667, at 112 S.Ct. 760, rule 60(b)(5)

3,27

Rust v Zent. 17 F.3d 155, 160 (6th Cir. 1994)

14

Sllveratelfi v Henderson, 706 F,2d 361 , 368 (CA2 1963)

Slmoaon v Jones. 23B F.3d 399, 400 (6th Cir. 2000)

12,26

21

Slack v McDaniel, 529 US 473, 483, 120 S.Ct. 1595, 146 L.Ed 2d 542 (2000) • • * IB

Strickland v Lioshlngton. 466 US 663 (1984)...................... ...........

Passim

Teague v Lane, 489 US 286, 109 S.Ct. 1060; 103 L.2d 334 (1989)

10

United States v Karahalloo. 205 F.2d 331, 333 (2d Cir. 1953)..

25

United States v Ohio Pciner Co.. 353 US 98, 99, 77 S.Ct. 652, 653, 1 L.Ed. 2d

683 (1957)

9

United States v Swift, 286 US 106, 76 L.Ed. 999, 52 S.Ct. 460 (1932)

.17

United States v Tennessee. 615 F.3d 646, the court stated: ’’Rule 60(b)(6).. .25

United Stataa v 429 S. Main St.. 906 F.Supp 1155, 1995 US Dist, Lexis 10023

(D. Ohio, Novsmber, 27, 1995)......,,,........................

25

Verdins u O’Leary. 972 F.2d 1467, 1460 (7th Cir. 1992)

14

tiiellone u Hall, 558 US 220, 222 (2010)..................

9

Ulthrou v Williams,

507 US 680, 698, 123 L.Ed. 2d 407, 113 S.Ct. 1745

(199e)

22,24

Whiting v Eurt, 395 F.3d 602, footnote #7:.........

Passim

Viet v Nuuemaker. 501 US 797; 111 S.Ct. 2590 (1991)

Psssim

©

STATUTES AND RULES

MGR.6.500

MGR. 6.508 (D)

4,5,6,19

4,7,19,20,23

MGR. 6.508 (D)(2)

9,11,26

MCR 6.508 (D)(3)

1,4,7

MCR 6.508 (D)(1)(2)(3)

3,6,13

MCR 6.508 (D)(3)(a)

10,18

Fad.R,Civ.P. 60 (b)

27

Fed.R.Civ.P. 60 (b)(1)through(6)

1

Fed.R.Civ.P. 60 (5)(6)

2,27

Fed.R.Civ.P. 60 (b)(6)

24,25

Fed Lew 502 US at 388

23

28 U.S.C. § 2254

28 U,S.C. § 2254 (1)

28 U.S.C. § 2254 (b)(1)(4)

28 U.S.C. § 2254 (b)(C)

3,17,19

2

6,11

14

OTHER

Substantive Due Process Clause; US Const. Am VI §1254 (1)

3

UNITED STATES CONSTITUTION, 14th AMENDMENT,Sec. 1

3

Ex Parte Yerger

22

INDEX TO APPENDICES

APPENDIX A, B

1

APPENDIX C, D, E

7

APPENDIX C, D, E

19

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

to

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at__ :

; or,

[ ] has been designated for publication but is not yet reported; or,

M is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

__to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

M is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the _

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

7

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was

7

^4 No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: ____________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including_______

(date) on

(date)

in Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

______________________ , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date)in

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The

instant

Petition

for

a

Writ

of

Certiorari,

involves

both

federal

constitutional proisions, i.e., U.S. Const. Am. XIV, Substantive Due Process

Clause; U.S. Const. Am VI § 1254 (1), jurisdictional predicate for Supreme Court

exercise of certiorari jurisdiction; Tittle 28 U.S.C. § 2254 State Prisoner

habeas corpus statutory provision; and, Michigan Court Rule — MCR 6. 508 (D) (1

through 3), state procedural default rule.

UNITED STATES CONSTITUTION. 14TH AMENDMENT, Sec. 1.

FOURTEENTH AMENDMENT

§ 1.

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and the State wherein

they reside. No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

The complete history of the case is long and intensive. The

Petitioner has diligenently pursued relief and to get his claims

and issues heard

and adjudicated an

the merits

in the federal

courts .

Petitioner

15,

1988.

In

was

convicted for first-degree murder

October of 1989,

on March

the State of Michigan adopted a

series of rules governing motions for relief from judgment. One

such court rule, MCR 6.508(D)(3), severely limits the claims that

can be

raised in a collateral

been

raised

Court

denied

on

direct

the

attack

appeal.

Petition

On

for

if the claims

Dune

Writ

24,

of

1996,

Habeas

could have

the

district

Corpus

in

this

matter, relying on MCR 6.50 (D) as a basis for a finding that the

claims

presented

were

procedurally

defaulted.

The

Court

of

Appeals

affirmed the judgment in an unpublished opinion on May

13, 1998, an banc rehearing mas denied on 3une 26, 1998; and the

Supreme Court denied Certiorari in this matter on February 22,

1 999 ,

rehearing

decisions

was

denied

on

March

1 9,

were based on whether or not

1 999.

MCR

All

6.508 (D)

of

these

was being

♦

improperly

retroactively

procedurally

default

rule

applied

to

deny

to

up

hold

Petitioner's

Writ

Michigan's

of

Habeas

Corpus. And if not weather or not the Michigan Court of Appeal's

order was a bifurcated or mixed order.

Petitioner's

original

appellate

/6

counsel,

(Atty.

Gerald

Lorence),

failed

to

issues, vis-a-vis,

submit,

on

direct

appeal,

the

dispositive

sufficiency of the evidence on

first degree

murder.' a.g., leek of pr emetilt a t ion/de. liber at ian/f el ony ; and the

clearly erroneous trial court admission, of a taped, inculpatory,

extra-judicial

police/uiitness

prior

"inconsistent

(NOT GIVEN UNDER OATH) as 'substantive evidence,

further,

said

counsel

failed

to

cite

any

statement"

inter alia, and

federal

cases or

the

constitution in most of the issues that he did raised on direct

appeal. He did houever, cite state cases, that relied on federal

cases and the constitutional claims,

raise

on

direct

appeal,

thus

in the issues that he did

fairly

presenting

to

the

state

courts the constitutional nature of the claims under the Picard v

Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1 971 )

standard. However consequently, on November 2, 1993, Petitioner

acting pro se, moved the trial court, via, motion for Relief from

Judgment, pursuant to MCR 6.500 et. seq.. Therein, asserting bath

state

and federal

provide

said

constitutional

court

with

a

claims,

[sjecond

adjudicate

such

Petitioner's

state-court trial.

constitutional

with the

opportunity

claims,

intention to

to

properly

incurred

during

And exhaust all

state

remedies

before bring his claims in a federal habeas corpus proceeding.

See 28 U.S.C. § 2254 (b)(1)(4) (permitting issuance of a writ of

habeas

corpus

only

after

"the

applicant

has

exhausted

the

judgment on

the

remedies available in the courts of the state").

Where

the

post-conviction

trial

court's

Motion

for

January

Relief

n

12,

from

1 994

Judgment,

[s]olely

and

specifically

hereto

1994

addressed

attached),

judgment,

where

claimed

[mjerlta

the

the

a

Michigan

procedural

presented;

(Appendix

Court of

Appeals

default;

(MCR

May

6.508

2,

CD)),

said order did not cite which part of the procedural default bar

it

was

claiming,

(D)(1),

(2)

or

further in its order and stated:

(3)

however,

the court did go

"Furthermore,

defendant raises

issues previously presented to this Court, and defendant has not

shown his original appellate counsel to be ineffective. People v

Reed, 198 Mich App 639 (1 993)," (Appendix

where

the

denial,

on

Michigan

Court

November

post-conviction

relief

whatsoever,

sanctioning

indication,

default.

Supreme

(Appendix

on

hereto Attached), and

(MCR

30.

1994

summary

6.500

et

seq.)

made

any

claimed

no

procedural

hereto attached). Thus in error, based on

these rulings from the state courts the District Court ruled that

petitioner had to establish "cause and prejudice" to overcome a

procedural default to have his issues heard in the Federal Court.

However,

the

United

States

Supreme

Court

held

in

Ylst

v

Nuuemaker, 501 U.S. 797; 111 S.Ct. 2590, that when a state court

refuses to readjudicate a claim on the ground that it has been

previously

determined,

the

court's

decision

does

that the claim has been procedurally defaulted,

(D)(2)

can

not

be

used

to

procedurally

bar

not

indicate

thus MCR 6.508

these

issues.

The

United States Supreme Court has upheld its earlier holding made

in passing in the Ylst case.

United

States

Supreme

See Cone v Bell,

stated:

"When

a

state

556 U.S. 449 the

court

declines

to

review the merits of a petitioner's claim on the ground that it

)x

has dona so already, it creates no bar to federal habeas review. "

The Court has given precedent holding to the former decision made

in passing in Ylst.

"cause

and

District

Thus, the petitioner never had to establish

prejudice"

Courts

Furthermore,

to

finding

the

overcome

of

Sixth

any

procedural

default,

default

not

procedural

Circuit

Court

of

is

Appeals

the

valid.

Stated:

In

Whiting v Burt, 395 F.3d 602, footnote #7: As this Court said in

Hicks

v

Straub

377

reference

to a

appellate

counsel

Courts

under

F. 3d

538,

petitioner's

and

n.17

(6th

Cir.

2004),

with

claim of ineffective assistance of

denial

6.508(D):

558

of

the

petition

Petitioner did not

by

the

Michigan

procedurally default

his claim of ineffective assistance of appellate counsel.

State

collateral review was the first opportunity that petitioner had

to

raise

the

from judgment,

decided

claim.

In denying petitioner's

motion

for

relief

the state trial court and the court of appeal's

petitioner's

in effective-assistance-of-counsel

claim

against petitioner

albeit without any reasoning.

review was the

proceeding for ineffective assistance by

proper

Collateral

prior appellate counsel, thus MCR 6.508(D)(3) can not be used to

procedurally bar this issue. Furthermore, because of the rulings

in YLST V. NUUEMflKER, 501

U.S. 797; 111

S.Ct. 2590,

and CONE V.

BELL, 556 U.S. 449 (2009) the petitioner's Writ of Habeas Corpus

should have never been procedurally barred in Federal Court under

the standard of failure to establish cause and prejudice for a

procedural

default

that

doesn't

abstention.

f3

apply

to

Federal

Court

REASONS FOR GRANTING THE PETITION

STANDARD OF REVIEW FOR RULE 60(b)(5) MOTION

IN Rufo v Inmates of Suffolk County Jail, 502 U , S . 367, 388,

112

S.CT.

748,

762,

11 6

L.Ed.2d

60 (b ) (5)--which states that,

867,

at

112

S.CT.

760,

rule

"upon such terms as are just,

the

court may relieve a party ... from a final judgment ... [when] it

is no longer equitable that the judgment should have prospective

application" --authorizes relief from an injunction if the moving

party shows a significant change either in factual conditions or

in

law.

Thus,

petitioner's

ability

to

satisfy

Rule

60(b)(5)*s

prerequisites hinge on whether the Court's later cases have

so

undermined the ruling in petitioner's case that it is no longer

good law. The Court's more recent cases heve clearly undermined

the assumptions

upon which the District

Court relied on at the

time it ruled on petitioner's case.

When

a

decision

of

the

Sixth

Circuit

Court

of

Appeals

departs in some pivotal aspects from e decision of the District

Courts, recall and amendment of the judgment may be warranted to

the

extent

Court's

necessary

prior

to

protect

judgment.See

the

AMERICAN

integrity

of

the

Iron And Steel

District

Institute v

EPA, 560 F.2d 589, 596 (3d Cir. 1977), cert, denied 435 U.S. 914,

98

S.Ct.

1467,

55

L.Ed.2d

505

(1978).

Modification

of a prior

judgment also promotes uniformity in judicial decision making and

in the treatment of litigants. IdL at 597-98.

See also Bryant v

Ford Motor Co • 9 886 F.2d 1526, 1530 (9th Cir. 1989); McGeshick v

Choucalr,

72

f. 2d

62 ,

63

(7th

Cir.

IH

1 995);

Davis

v

Lawrence-

Cedar-hurst Bank,

206

F.2d

388,

389

(2d

Cir.)

cert denied,

34 6

U.S. 877, 74 S.Ct 130, 98 L.Ed. 384 (1953).

of

The primary countervailing consideration

is the

finality

McGeshick,

in

the

judicial

proceedings.

importance

supra.

However, this is not a staled case, "the interest in finality of

litigation must yield where the interests of justice would make

unfair the strict application of our rules.” United States v Ohio

Power Co.,

353

U.S.

98,

99,

77

S.CT.

652 ,

653,

1

L.Ed.2d

683

(1 957) .

RETROACTIVITY

The District Court's application of MCR 6.508 (D)(2) to this

case is contrary to the United States Supreme Court's decisions

in Picard v Connor, 404 U.S. 207, 275,

92 S.

2d 438

U.S.

(1 971 );

Vlst v Nuuemaker,

501

Ct. 509, 30 L. Ed.

797;

111

S.Ct.

2590

(1991); HURRAY v CARRIER. 477 U.S. 478, 490-492, 106 S.CT. 2639,

91

L.Ed.2d 397

(1 986); Cone v Bell,

specifically ruled, relying on Ylst,

See

also,

MELLONS

v

Hall.

558

556 U.S.

supra,

U.S.

449 (2009), which

as their authority.

220,

222

(2010).

And

Strickland v Washington, 466 U.S. 298 (1984) and the 6th Circuit

Court of Appeals decisions in Carpenter v Mohr, 163 F.2d 938 (6th

Cir.

1 998);

Magana

v

Hofbauer,

263

F.2d

542

Whiting v Burt, 395 F.3d 602; Hicks v Straub,

n. 1 7 (6th Cir. 2004); and Guilmette v.

Cir.

2010).

Thus,

the

district

/

(6th

Cir.

2001 );

377 F.3d 538,

558

Howes, 624 F.3d 286 ( 6th

Court's

finding

of

procedural

default is not valid.

To determine whether a decision establishes

a new rule of

criminal procedure, federal courts apply the analysis of Teague v

Lana,

489

U.S.

288,

1 09

S.Ct.

1 060 ;

103

L.

2d

334

Retroactivity is required unless the rule is new. Id.

(1 989).

at 301. A

rule is not considered new unless it "breaks new ground" imposes

a new obligation on the [ * * * 4] State or Federal Government,'

or

was

the

not'

dictated

by

precedent

existing

defendant's conviction became final.

467,

113 S.Ct.

892;

122 L.

Ed.

at

the

time

Graham v Collins,

2d 260

(1993),

quoting

506 U.S.

Teague,

supra at 301 (emphasis omitted). In Whiting v Burt, 395 F.3d 602,

HN.

7,

the court stated:

The federal law governing

ineffective

assistance of appellate counsel is not only firmly established,

but

it.

excuse

The

has

been

applied

a procedural

ineffective

by

the

Michigan

default under Mich.

assistance

of

counsel

courts

C t.

R.

standard

as

"cause"

to

6.508(D)(3)(a).

articulated

by

Strickland v Washington, 466 U.S. 668 (1984), has been adopted by

the Michigan

Supreme

Court in

People v

Pickens,

did

allow

446 Mich.

298

(1 994) .

Admittedly,

Michigan's

Law

not

for

ineffective

assistance of appellate counsel to be used far cause to excuse a

procedural default under Mich.

of petitioner's

does

not

now

appeal.

exist

in

Ct.R.

However,

a

6.508(D)(3)(A)

at the time

Michigan law did not

vacuum.

The

unequivocal

then and

language

of

Strickland supra, leaves no doubt that the federal law governing

)(a

ineffective

assistance

established,

but

it

of appellate counsel is not only firmly

has

been

applied

as

"cause"

to

excuse

States

Supreme

Court

a

procedural default.

Furthermore,

it's

earlier

uihen

holding

the

United

made

in

passing

in

the

case

of

upheld

Ylst

v

Nunnemaker, 501 U.S. 797, 804, n. 3, 111 S.Ct. 2590, 115 L.Ed. 2d

706

(1 991 ),

application

federal

the

of

MCR

habeas

Court

6.508

review

stated at Led HN8,

settled

(D)(2)

See

any

confusion

concerning

Cone

v

Bell,

about

the

procedural

bars

to

U.S.

where

it

556

"When a state court declines

449

to review the

merits of a petitioner's claim on the ground that it. has done so

already,

it

creates

no

bar

to

federal

habeas

review.

In

Ylst

supra., we observed in passing that when a state court declines

to revisit a claim it has already adjudicated, the effect of the

later decision upon the availability of federal habeas is "nil"

because

"a

further

state

later

state

decision

based

upon

ineligibility

review neither rests upon procedural

lifts a pre-existing

for

default nor

[*467] procedural default." FN. #12, When a

state court refuses to readjudicate a claim on the ground that it

has

been

previously

determined,

the

court's

decision

does

not

indicate that the claim has been procedurally defaulted. To the

contrary, It provides strong evidence that the claim has already

been

given

full

consideration

ripe

for

federal

adjudication.

by

the

See

28

state

courts

U.S.C.

§

and thus

2254

is

(b)(1)(4)

(permitting issuance of a writ of habeas corpus only after "the

applicant has exhausted the remedies available in the courts of

the state").

/7

In Cone supra. Foot Note #12, "With the exception of the Sixth Circuit,

all Courts of Appeals to have directly confronted the question both before and

after Ylst, 501 U.S. 797, 111 S.Ct. 2590, 115 L. Ed. 2d 706, have agreed that a

state court's successive rejection of a federal claim does not bar federal

habeas review. See, e.g., Page v Frank 343 F.3d 901, 907 (CA7 2003); Brecheen v

Reynolds, 41 F.3d 1343, 1358 (CA10 1994); Bennett v Whitley, 41 F.3d 1581 , 1582

(CA5 1994); Sllversteln v Henderson

706 F.2d 361, 368 (CA2 1983) See also

Lambreght v 5tewart, 241 F.3d 1201, 1206 (CA920D1)."

In PHILLIPS v HDUK, 587 Fed. Appx 868 (2014) the court wrote: "State

procedural rules sounding in res judicata generally do not constitute procedural

defaults. Res judicata is not a bar to consideration of claims in a federal

habeas action. A state-court ruling denying a claim as already adjudicated, far

from being a procedural default, provides strong evidence that the claim has

already been given full consideration by the state court and thus is rip for

federal adjudication. Where a state court denies a claim as waived, the claim is

procsdurally defaulted and the federal court may not review the claim absent a

showing of cause and prejudice; but where a state court denies a claim as

already litigated,

whether or not correct,

the claim is not procsdurally

defaulted.

Accordingly, it would be inaccurate to say that the Supreme Court's

decision in Cone supra, was "unexpected" and "indefensible" whan made in 2010.

Nor would it be accurate to assert that Cone announced a new federal rule.

On October 21, 2010, the United States Court of Appeals for the Sixth

Circuit decided the published opinion in GUILMETTE v. HOWES, 624 F.3d 286 (6th

f

Cir. 2010), which specifically held, The Court determined that brief orders

citing Mich. Ct. R. 6.508(D) were not explained orders invoking a procedural bar

because holdings from Michigan Courts indicated that the language used by such

summary orders could refer to the petitioner's failure to establish entitlement

to relief either on the merits or procedurally, and such ambiguity demanded a

determination that the orders were not explained.

Thus,

because the state

supreme court's order was unexplained (the text of the order failed to disclose

the reason for the judgment), The Michigan Court of Appeals claimed a procedural

default; (MCR 6.508 (D)), however, said order did not cite which part of the

procedural default bar it was claiming, (D)(1), (2) or (3), however, the court

did go further in its order and stated: "Furthermore, defendant raises issues

previously presented to this Court, and defendant has not shown his original

appellate counsel to be ineffective. People v Reed, T98 Mich App 639 (1993)."

And the last reasoned trial court decision was on the merits, the state courts

never enforced a procedural bar to petitioner's claim. The Federal District

Court found that petitioner's claims were procedurally defaulted and that he did

not establish "cause and prejudice" to overcame the default. However, it is

clear that based on the holdings in the United States Supreme Court cases Picard

supra.; Ylst supra.; Cone's supra., and the 6th Circuit Court's subsequent

decision in Guilmette, supra, that determination was never correct;

as MCR

6.508(D)(2) is not a procedural default to federal Court writ of habeas corpus.

Defendant never had to establish "cause and prejudice" to overcome a procedural

default.

EXHAUSTION

According to the doctrine of exhaustion, a state prisoner must exhaust

his

state

remedies before bringing his claim in a federal

habeas corpus

proceeding. 28 U.S.C. §2254 (b), (c); see Rose v Lundy, 455 U.S. 509, 522, 102

S.Ct. 1198, 71 l. Ed. 2d 379 (1982). Exhaustion is fulfilled once a convicted

defendant seeks review of his or her claims on the merits from a state supreme

court. O'Sullivan v Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 t. Ed. 2d 1

(1999).

A habeas petitioner satisfies the exhaustion requirement when the

highest court in tha state in which the petitioner has been convicted has had a

full and fair opportunity to rule on the claim. Rust v Zent, 17 F.3d 155, 160

(6th Cir. 1994). (citing Hanning v Alexander, 912 F.2d 878, 881 [*663] (6th Cir,

1990)). If, under state law

there remains a remedy that a petitioner has not

yet pursued, exhaustion has not occurred, and the federal habeas court cannot

entertain the merits of the claim. See Id, 6.

In Lyons v Crawford, 232 F.3d 666, 670 n.3 (9th Cir. 2000), as modified

by 247 F.3d 904 (9th Cir. 2001), we left open the question whether citation of

state cases analyzing federal constitutional claims fairly presents those claims

to the state courts for purposes of exhaustion. Five of our sister circuits have

held that it does. See McCandless v Vaughn,172 F.3d 255 (3d Cir. 1999) (relying

on state cases employing constitutional claim); Barrett v Acevedo, 169 F.3d

1155, 1161-62 (8th Cir. 1999) (citing state case raising a pertinent federal

constitutional issue' fairly presents the federal claim); Hannah v Conley, 49

F.3d

1193,

1196

(6th

Cir.

1995)

(citing

’state

decisions

employing

constitutional analysis in similar fact patterns' fairly presents the federal

claim); \/erdlns v O'Leary, 972 F.2d 1467, 1480 (7th Cir. 1992) (citing

state

cases applying constitutional analysis or making reference to the constitution

fairly presents the federal claim); Daye v Attorney Gen, of N.Y •I 696 F.2d 186,

194 (2d Cir. 1982) (en banc) (holding that "reliance on state cases employing

constitutional analysis in like fact situations' fairly presents the federal

claim)," Barrett at 1157-58; "A central tenet; of our federal system is that

state and federal courts are jointly responsible for the enforcement of federal

constitutional guarantees.

The

Constitution binds state and federal judges

alike. U.S. Const. Art. \/I. To hold that citation to a state casB analyzing a

federal constitutional issue is insufficient to alert a state court to the

federal nature of a petitioner's claim, when citation of a comparable federal

case mould be sufficient for that purpose, mould be to conclude that the state

courts are not genuine partners in the enforcement of federal constitutional

lam. Such a conclusion is inconsistent with the responsibility and dignity of

the state courts in our federal system .

. Lie therefore join our sister

circuits and hold that, for purposes of exhaustion, a citation to a state case

analyzing a federal constitutional issue serves the same purpose as a citation

to a federal case analyzing such an issue," Barrett at 1158).

In

Jackson v Edmards, 404 F.3d 612 (2d Clr. 2005) the court mrote:

("the question Baldmin left open is nom before us: Lihan state and federal claims

share tha same legal standard, has a federal claim been 'fairly presented

mhen

the state court necessarily rejects the federal claim in ruling on the state

claim? In his brief to the [Nem York] Appellate Division, Jackson relied on

state lam to argue that the trial court erred in refusing to instruct the jury

on the defense of justification because, on a reasonable viem of the evidence,

the fact-finder might have decided his actions mere justified..

Division, in turn, held that

Tha Appellate

' [cjontrary to the defendant's contention, no

reasonable viem of the evidence supports a justification charge and, thus, the

trial court properly declined to give it,

" at 620 (footnote and citations

omitted); "Had Jackson instead argued that the trial court's failure to charge

2/

justification

denied him due

process

under

the

Fourteenth

Amendment,

the

Appellate Division's inquiry mould have been the same,", at 621; "In a case such

as this, where the failure to instruct the jury on justification was so harmful

as to deny the defendant due process, Jackson necessarily presented his due

process

claim

when

he

asked

the

Appellate

Division

to

find .that

the

justification instruction should have been.given. .. [T]he failure to charge the

jury on justification was nothing less than 'catastrophic'

Jackson was deprived of a

for Jeckson.

highly credible defense' that might well have allowed

the jury to acquit him not only of second degree murder, but also of second

degree weapon possession.

On these facts, the trial court's denial of the

justification charge rendered Jackson's conviction unfair. Thus, even if his

brief to the Appellate Division did not explicitly invoke due process,

unavoidable raised the entirety of his federal

claim,"

at 621

it

(citations

omitted); "We are confronted, therefore, with a situation for which the Supreme

Court's application of the 'fairly present1 standard invites further refinement.

In contrast with other situations, Jackson did not explicitly have to tell the

state court, that he was presenting a federal due process claim because, by

raising his state law claim, he necessarily gave, the Appellate Division a fair

opportunity to pass upon and correct alleged violations, of

rights.

[his]

federal

[Picard v Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438

(1971) (internal quotation marks and citation omitted). Where the absence of the

required justification defense so clearly deprived Jackson of due process, his

state law claim was not merely

somewhat similar' to that of his federal claim;

it was '.virtually identical.

[Duncon v Henry, 513 U.S. 364, 366, 115 S.Ct 887,

130 L. ED. 2d 965 (1995)," Accordingly, we hold that Jackson exhausted his

federal claim because, in this case, the legal standard for his federal and

state claim were so similar that by presenting his state claim he also presented

-2 ^

his federal claim," at 621 ).12345

A state court's ruling that the claim Is nous and forever barred from

state courts on state procedural grounds clearly exhausts it. Petitioner went

through one full round of state postconviction proceeding with these issues and

exhausted them in the state courts.

JURISDICTION

In United States v Swift, 206 U.S. 106, 76 L.Ed 999, 52 S.CT. 460

(1932), the Court wrote: "HN1 A court of equity has the power to modify an

injunction in adaptation to changed conditions though it was entered by consent.

A continuing degree of injunction directed to events to come is subject always

to

adaptation

as

events

may

shape

the need.

The

distinction

is

between

restraints that give protection to rights fully accrued upon facts so nearly

permanent as to be substantially impervious to change, and those that involve

the supervision of changing conduct or conditions and are thus provisional and

tentative. The result is all one whether the degree has been entered after

litigation."

This Court, - through exercise of both

appellate

and subject matter

jurisdiction, is competent to determine the appropriate [s]cope of federal court

abstention, respecting § 2254 habeas corpus, and further where, Petitioner has,

in fact

demonstrated a "substantial showing on the denial of federal right,"

then, such § 2254 habeas petition, alleging substantive, federal constitutional

violations, "are adequate to deserve encouragement to proceed further. "Barefoot

v Estelle, 463 US 880, B93, n.4, 103 5 CT 3383, 3394, n. 4, 77 L Ed 2d 1090

2,3

(1983).

ARGUMENT I

This is not a casa in which the Petitioner is trying to get a second

bite at the apple, this is a case were the petitioner is asking for his one

constitutionally guaranteed bit at the apple. Petitioner prays the Court does

not underestimates the significance of the fact that petitioner was effectively

shut out of federal court-without any adjudication of the merits of his claimsbacause of a procedural ruling that was later shown to be completely erroneous.

As the United States Supreme Court has stressed, in Gonzalez v Crosby, 125 S.Ct.

2641

(2005), dismissal of a first federal habeas petition is a particularly

serious matter, for the dismissal denies the petitioner the protections of the

Great Writ entirely, risking injury to an important interest in human liberty."

Lonchar v Thomas, 517 U.S. 314, 324, 116 S.Ct. 1293 134 L.Ed.2d 440 (1996); sea

also Slack v McDaniel, 529 U.S. 473, 4B3, 120 S.Ct. 1595, 146 L.Ed.2d 542

(2000)("The

writ

of

habeas

corpus

plays

a

vital

role

in

protecting

constitutional rights").. When habeas petition has been dismissed on a clearly

defective procedural ground, the State can hardly claim a legitimate interest in

the finality of that judgment. Indeed, the State has experienced a windfall,

while the state prisoner has been deprived-contrary to congressional intent-of

his valuable right to one full round, of federal habeas review.

In Whiting v Burt, 395 F.3d 602, HN. 7, the Court stated: The federal

lew governing ineffective assistance of appellate counsel is not only firmly

established, but it has been applied by the Michigan courts as "cause" to excuse

a

procedural

default

under

Mich.

Ct.

R.

6.508(D)(3)(a).

The

ineffective

assistance of counsel standard articulated by Strickland v Washington, 466 U.S.

666 (1984), has been adopted by the Michigan Supreme Court in People v Pickens,

446 Mich. 298 (1994).

Further where, the trial court's January 12, 1994 denial was on the

merits presented (Appendix A hereto attached) and, where the Court of Appeals's

May 2, 1994 judgment claimed a procedural default; (MCR 6.508(D)), then went, on

to state:"Furthermore,

Court."

defendant raises issues previously presented to this

and then went on further and ruled on the merits of petitioners

ineffective assistance of counsel claim against petitioner

albeit without

any reasoning, then, the Michigan Supreme Court's November 30, 1994 summary

denial, on post-conviction relief,

(MCR 6.500 et, seq.) made no indication,

whatsoever, on sanctioning any claimed [procedural default, (Appendix C, hereto

attached) then, such circumstances, considered as a whole, represent, at beet, a

bi-furcated or mixed state-court disposition on post-conviction relief and thus,

may not [r]essonably serve as an '[a]dequ8te and independent state-court basis

upon which [f]ederal court abstention, vis-a-vis, § 2254 habeas corpus could be

justifiable. Further more, the Sixth Circuit has declined to adopt a bright line

rule for determining when Mich. Ct. R. 6.508(D) became a "firmly established"

procedural rule such that a state court's dismissal for failure to comply is

based an an "adequate and independent" procedural rule barring federal habeas

review. Luberda v Trippett, 211 F.3d 1004 (CA6, 2000); Gonzales v Elo, 233 F.3d

348 (CA6, 2000); Rogers v Howes, 144 F.3d 990 (CA6, 1998).

Where as here,

Petitioner stands convicted of the highest possible

offense, under either state or federal law, i.e.

where,

such

conviction

is

obtained

through

*2

'first degree murder,' but

an

egregious

violation

of

[f]undsmental fairness, and further where, the state-court has [n]ot, under the

instant fact scenario, unequivocally [rjelied upon (bi-furcated, mixed statecourt disposition)

the claimed

[procedural default,

(MCR 6.508 (D)) then,

federal court abstention/dismessal of Petitioner's § 2254 habeas petition, is

tantamount to an abuse of discretion.

As an [e]quitable decision, the state-court, under the instant facts,

must not,

be permitted to

constitutional

violations

[v]icariously

suffered

by

circumvent the

Petitioner

[b3 latent,

herein,

through

federal

merely

purporting procedural default, devoid of facts sufficient to [realistically

[demonstrate same.

ARGUMENT II

EQUAL PROTECTION OF THE LAW

The constitutional guarantee of "equal protection of the law" means that

no person or class of person shall be denied the same protection of the law

which is enjoyed by other persons or other classes in like circumstances in

their lives, liberty, property, and in their pursuit of happiness, People v

Jacobs, 27 Cal. App. 3d 246, 103 Cal. Rptr. 536, 543; 14th Amend., U.S. Const.

This doctrine simply means that similarly situated persons must receive similar

treatment under the law. Dorsey v Solomon, D.C. Md., 435 F. Supp. 725, 733. When

they are liable to no other or greater burdens and charges than such as are upon

others; and whan no different or greater punishment is enforced against them for

a violation of the laws. Richardson 251 C.A.2d 222, 59 Cal. Rptr. 323, 334.

This is not a decree entered by consent where petitionar has voluntarily

and consciously agreed not to contest the legal and factual elements of this

case! The district court found that petitioner's claims on direct appeal were

raised under state law only, and were procedurally defaulted and that petitioner

did not establish cause and prejudice to overcome the default. However, the

decisions on these issue reached by the United States Supreme Court in Picard,

supra.; VIST, supra.; Cone, supra. Strickland, supra. Carrier, supra and the 6th

Circuit Court of Appeals decisions, in Whiting,

supra.;

Hicks,

supra,

and

Guilmette, supra, all show that the previous interpretations on these issue were

wrong.

These were not issues that were clear at the time of petitioner's

petition. There were many deferent interpretations of this Michigan procedural

default rule at the time of Petitioner's petition. In Andrews v Rapelje, 2011

U.S. Dist. Lexis 69567, the Court stated: The Michigan Court of Appeals and

Michigan Supreme Court both rejected petitioner's appeal based on his "failure

to meet the burden of establishing entitlement to relief under MCR 6.5DB (D)."

In Simpson v Jones, 238 F.3d 399 (6th. Cir. 2000), the court held that this

identical language constitutes an invocation of the procedural aspects of Rule

6.508 (D), and thus bars federal habeas review. See Simpson v Jones, 238 F.3d

399, 408 (6th. Cir. 2000). However, the en banc Sixth Circuit has recently

rejected this rule, holding that the form orders used by the Michigan courts

constitute

unexplained

[*10]

orders which

are

ambiguous

as

to

whether

a

procedural bar is being invoked and thus a federal habeas court must "look

through" these orders to the last reasoned state court judgment to determine if

the claims are barred. See Guilmette V Howes, 624 F.3d 286, 291-92 (6th. Cir.

2010)(en banc). Clearly, these issues were not settled among the courts until

the United States Supreme Court and the 6th Circuit Court of Appeal clarified

these issues.

"Only a

be

interposed

firmly established and regularly followed state practice" may

by

a

state

to

prevent

subsequent

review...

of

a

federal

constitutional claim Sea Ford \l Georgia, 498 U.S. 411, 423-24, 11 S.Ct. 850, 112

L.Ed. 2d 935 (1991) (quoting James V Kentucky, 466 U.S. 341, 348-51, 104 S.Cf.

1830, 80 L. Ed. 346 (1984); See also Calderon V United States Dist. Ct • J for the

E. Dist. of Gal., 96 F.3d 1126 (9th Cir. 1996)(internal quotation omitted) ("For

the

procedural

default

doctrine

to

apply

a

state

rule

must

be

clear,

consistently applied, and well-established at the time of petitioner's purported

default.") See Also People V. Reed, 535 N.U.2d 496 (1995).

However,

because

of the

ruling

in

Petitioner's

case

he

has

been

effectively shut out of federal court-without any adjudication of the merits of

his claims-because of a procedural ruling that was later shown to be completely

erroneous. As the United States Supreme Court has stressed, dismissal of a first

federal habeas petition is a particularly serious matter, for the dismissal

denies the petitioner the protections of the Great Writ entirely, risking injury

to an important interest in human liberty. Sea Ex parte Yerger, 75 U.S. 85, 8

Wall. 85, 95. 19 L. Ed. 332 (1869) (the writ "has been for centuries esteemed

the best and only sufficient defence Df personal Freedom"), Ulithrow V Williams,

507 U.S. 680, 698, 123 l. Ed. 2d 407, 113 S.Ct. 1745 (1998).

In Hollway V Woodard, 655 F. Supp. 1245, the court wrote,

"Justice

Holmes, sixty-four years ago wrote in Davis V lilechsler, 263 U.S. 22, 24, 68 L.

Ed. 143, 44 S.Ct. 13 (1923), "Whatever springs the State may set for those who

are endeavoring to assert rights that, the State confers, the assertion of

federal rights, when plainly and reasonably made, is not to be defeated under

the name of local practice."

2-2*

In Northridge Church V Charter Tup, of Plymouth, 647 F.3d 606, the court

wrote concerning a changed legal circumstance:

In Rufo, The Supreme Court explained that, HN10, "[A] consent decree

must be modified if, as it later turns out, one ar more of the obligations

placed upon the parties has become impermissible under federal Law." 502 U.S- at

388. Alternatively, "modification of consent decree may be warranted when the

statutory or decisional law has changed to make legal what the decree is

designed to prevent." Id. Also, "[w]hile a ...[***12] clarifi [cation of] the

law will not, in and of itself, provide a basis far modifying a decree, it could

constitute a change in circumstances that would support modification [***20] if

the parties based their agreement on a misunderstanding of the governing law."

Id. at 390.

In this case' the district court found that petitioner's claim's were

pracedurally defaulted and that he had not established cause and prejudice to

overcome the default. However, the District Court's application of MCR 6.508 (D)

to this case is contrary to the United States Supreme Court's decisions in

Picard v Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971);

Ylst v Nuuemaker. 501 U.S. 797; 111 S.Ct. 2590 (1991); Cone v Bell, 556 U.S. 449

(2009) and Strickland v Washington, 466 U.S. 668 (1984) and the 6th Circuit

Court of Appeals decisions in Carpenter v Mohr, 163 F.3d 938 (6th Cir. 1998);

Magana v Hofbauer, 263 F.3d 542 (6th Cir. 2001); Whiting v Burt, 395 F.3d 602;

Hicks v Straub, 377 F.3d 53B 558 n.17 (6th Cir. 2004) and Guilmette v Howes, 624

F.3d 286 (6th Cir.

2010). Thus, the District Court's finding of procedural

default is not valid.

In Lonchar v Thomas, 517 U.S. 314, the court worts: "Although the rules

governing 2254 cases provide Federal District Courts with ample discretionary

authority to tailor the proceedings to dispose quickly, efficiently, and fairly

of prisoners' first federal habeas corpus petitions that lack substantial merit

while preserving more extensive proceedings for those petitions raising serious

questions, arguments against ad hoc departure from settled rules that guide

lower federal courts in the consideration of habeas corpus petitions seem

particularly strong when dismissal of a first petition is at issue, since

dismissal of a first habeas corpus petition is a particularly serious matter in

that such dismissal denies the petitioner the protections of the writ entirely,

risking injury to an important interest in human liberty." (the writ "has been

for

centuries

esteemed

the best

and only sufficient

defence

of

personal

Freedom"), tdithrow v Williams,507 U.S. 680, 690, 123 L.Ed.2d 407, 113 S.Ct. 1745

(1993).

STANDARD OF REVIEW FOR RULE 60(b)(6) MOTION

Fed. R. Civ. P. 60(b)(6) permits relief from judgment based on other

reasons not articulated by the first five numbered clauses of Rule 60(b).

In Fackelman v Bell, 564 F. 2d 734, 736 (5th Cir. (1977) the Court of

Appeals stated that: "A decision of the Supreme Court of the United States, or a

Court of Appeals may provide the extraordinary circumstance for granting a Rule

60 (b)(6) motion,".

That such relief should be applied only in exceptional or extraordinary

circumstances and when the Court determines

substantial justice would be served.

3O

in its sound discretion that

In United States v Tennessee, 615 F.3d 646, the court stated: "Rule

60(b)(6) provides for relief from judgment for any reason "justifying relief

from the operation of the judgment" not otherwise enumerated. The rule invests

the Court with discretion which Is to be exercised, however, only in exceptional

circumstances [*3] or in cases of extreme hardship, flckermann v United States,

340 U.S. 193, 199 (1950), United States v Karahallas, 205 F.2d 331,333 (2d Cir.

(1953); flghassl v Holden It Co.. 92 F.R.D. 98, 99 (D. Mass. 1981); Brook v Walker

82 F.R.D. 95, 96 (D. Mass. 1979); United States v 429 S. Main St,906 F.Supp

1155, 1995 U.S. Dist. Lexis 18023 (D. Ohio, November, 27, 1995).

HN6. As a general rule, Fed. R. Civ. P. 60(b)(6) can be used only in

exceptional circumstances in casss that are not covered by the first five

subsections of Rule 60(b). "Exceptional circumstances" under Rule 60(b)(6) means

"unusual and extreme situations where principles of equity mandate relief" and

the party must show that absent relief, extreme and undue hardship will result.

A claim of simple legal error unaccompanied by extraordinary or exceptional

circumstances is not cognizable under Rule 60(b)(6).

The extraordinary circumstance and the undue hardship in this case is

the decisions in Picard v Connor, 404 U.S. 270,275, 92 L. Ed. 2d 433 (1971); In

which the District Court held that Petitioner had raised his issues in state

court as state issues only. In Jackson v Edwards, 404 F.3d 612 (2d Cir. 2005)

the court wrote: ("the question Baldwin left open is now before us: Whan state

and federal claims share the same legal standard, has a federal claim bean

'fairly presented' when the state court necessarily rejects the federal claim in

ruling on the state claim?)" Relying on Jackson supra, the court ruled,:In

_3 /

contrast with other situations, Jackson did not explicitly have to tell the

state court that he was presenting a federal due process claim because, by

raising his state law claim, he necessarily gave the Appellate Division a fair

opportunity to pass upon and correct alleged violations of

this]

federal

rights.' Picard v Connor, 404 U.S. 270,275, 92 L. Ed. 2d 43B (1971); also in

Vlst v Nuuemaker, 501 U.5. 797; 111 S.Ct. 2590 (1991), in which the District

Court failed to address and adhere to the most important part of this case

pertaining to petitioner petition . for writ of habeas corpus before them. The

United States 5upreme Court steted in its ruling in Ylst, supra, that: "When a

state court declines to revisit a claim it has already adjudicated, the effect

of the later decision upon the availability of federal habeas is "nil" because

"a later state decision based upon ineligibility for further state review

neither rests upon procedural default nor lifts a pre-existing [*467] procedural

default" and the subsequent decision of the United States Supreme Court in Cone

supra, which cited Ylst supra, as it's authority, and made this issue absolutely

clear once and for all concerning the application of MCR 6.508 (D)(2) to a

habeas corpus petition, it creates no bar to federal habeas review. Foot Note

#12, "With the exception of the Sixth Circuit, all Courts of Appeals to have

directly confronted the question both before and after Vlst, 501 U.S. 797, 111

S.Ct. 2590, 115 L. Ed. 2d 706, have agreed that a state court's successive

rejection of a federal claim does not bar federal habeas review. See, e.g., Page

v Frank, 343 F.3d 901, 907 (CA7 2003); Brecheen V Reynolds, 41 F.3d 1343, 1343,

1358 (CA10 1994); Bennett V Uhitley, 41 F.3d 158(1. (CAS 1994); Sllverstein V

Henderson, 706 F.2d 361, 368 (CA2 1983) See also Lambright \/ Stewart, 241 F.3d

1201, 1206 (CA9 2001)." And the decisions of Vlst suprra; Strickland supra;

Carrier supra; Cone supra, and the United States Court of Appeals for the Sixth

Circuit's decisions in Carpenter supra;

Magana supra; Whiting supra;

_3 e

Hicks

supra, and Guilmette supra, as well as the fact that petitioner is serving a

life sentence without parole, and life time imprisonment under a wrongful legal

ruling is a quintessential miscarriage of justice.

Substantial justice would be served by granting this motion because it

would rectify a wrongful application of the law, and would put petitioner on

equal footing as those petitioners who benefited from the applicable law.

In the interest of justice, the United States Supreme Court permitted a

judgment that had become final four years earlier to be reopened under Rule

60(b). See Klapportt \l United States, 335 U.S. 601, 613-14, 69 S.Ct. 3B4 (1949),

e.g., Fackelman V Bell, 564 F.2d 734, 736 (5th Cir. 1977). This Court also

allowed a judgment that had became final seventeen years earlier to be reopened

under

Rule 60

(b).

See Buck V. Davis, 137 S.Ct.

759

(February 22,2017) .

Petitioner asserts that he has met the standard for this Court to grant the

relief he is requesting.

RELIEF

The petitioner inserts that the standard the Supreme Court employed in

Rufo, supra, applies to his motion and entitles him to a modificstian/amendment

of the denial of his Habeas Corpse Petition. 60(B)(5),(6) accordingly

when

confronted with any motion invoking this rule, a district court's task is to

determine

whether

it

remains

equitable

for

judgement

at

issue

to

apply

prospectively and, if not, to relieve the parties of some or all of the burdens

of that judgment on "such terms as are just." The constitutional command of U.S.

Const,

amend.

XII/ is that no

state

shall deny to any person that equal

33

protection of the law.

Respectfully, Petitioner requests this Honorable Court to Remand this

cause, to the U.S. Court of Appeals, for the Sixth Circuit, Directing entry of

an appropriate Order to the U.S. District Court, for the Western District of

Michigan,

providing

for the proper adjudication of Petitioner's colorable,

constitutionel allegations, under Title 28 U.S.C. § 2254.

Respectfully submitted,

Basse Coddington #1 3S!J39

Petitioner in Propria Persona

Richard A Handlon Correctional Facility

1728 Bluawater Hwy.

Ionia, MI 48846

Dated / - Jj? - 'Z-O / 9

3V

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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