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
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