Petition for Writ of Certiorari — Michael Fetherolf, Petitioner v. Tim Shoop, Warden

Case: 21-3985

Document: 18-2

Filed: 05/06/2022

FILED

No. 21-3985

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHAEL FETHEROLF,

Petitioner-Appellant,

v.

TIM SHOOP, Warden,

Respondent-Appellee.

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May 6,2022

DEBORAH S. HUNT, Clerk

ORDER

Before: SUHRHEINRICH, Circuit Judge.

Michael Fetherolf, an Ohio prisoner proceeding pro se, appeals the district court’s denial

of his third motion for relief from judgment filed pursuant to Rule 60(b)(1) of the Federal Rules

of Civil Procedure. His most recent Rule 60(b) motion sought relief from the district .court’s

judgment denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Fetherolf

has applied for a certificate of appealability (“COA”), see Fed. R. App. P. 22(b), and moves to

proceed in forma pauperis on appeal, see Fed. R. App. P. 24(a)(5).

In 2016, an Ohio jury convicted Fetherolf of rape, in violation of Ohio Revised Code

§ 2907.02(A)(1)(b); gross sexual imposition, in violation of Ohio Revised Code § 2907.05; and

intimidation of a witness, in violation of Ohio Revised Code § 2921.04(B). Those convictions

stem from Fetherolf digitally penetrating the vagina of his seven-year-old daughter, A.C., in 2013,

and threatening A.C. that she would be in trouble if she told anyone about the incident. The trial

court sentenced Fetherolf to an aggregate term of 25 years to life in prison. The trial court

thereafter denied Fetherolf s motion for a new trial, in which he raised 14 claims. The Ohio Court

of Appeals affirmed Fetherolf s convictions on direct appeal. State v. Fetherolf, Nos. 14-16-10,

14-16-11,2017 WL 1316207, at *13 (Ohio Ct. App. Apr. 10,2017), perm. app. denied, 87 N.E.3d

224 (Ohio 2017).

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-2Fetherolf subsequently filed a state petition for post-conviction relief under Ohio Revised

Code § 2953.21, in which he advanced several ineffective-assistance-of-trial-counsel (“IATC”)

daimsr'Theteialcourf'dismissed Fetherolf s^Hih6n,"c6hcludihgiiiat*iIie"d6ctxmeo'f resjudicata

barred review of his IATC claims that were based on facts apparent from the record because those

claims could have been raised on direct appeal, and that his remaining IATC claims—that is, those

claims based on facts that were not a part of the trial record—were without merit. Fetherolf did

not appeal that ruling, although he did file several other unsuccessful state post-conviction actions,

including an application to reopen his direct appeal under Rule 26(B) of the Ohio Rules of

Appellate Procedure (claiming that appellate counsel was ineffective for not raising “viable and

obvious” claims on direct appeal).

In January 2019, Fetherolf filed a § 2254 petition raising nine claims, including claims that

he was denied a fair trial due to admission of “other acts” evidence (Claim 1), that the presentation

of false evidence, perjury, and prosecutorial misconduct violated his rights to due process and to

an impartial jury (Claim 5), that trial counsel rendered ineffective assistance in several ways

(Claim ?),

that appeUSe counsel fehdefed’iheffective_assistance'(Claim 8)7’The district court

dismissed the habeas petition and declined to issue a COA after concluding that Fetherolf s claims

were either procedurally defaulted or meritless. This court likewise declined to issue a COA.

FetherolfV. Warden, No. 20-3565 (6th Cir. Sept. 17,2020).

In December 2020, Fetherolf filed a motion for relief from judgment under Rule 60(b)(1)

and (b)(6),1 arguing that the district court had erroneously concluded that he did not show cause

and prejudice to overcome the procedural default of several of his habeas claims. See Coleman v.

Thompson, 501 U.S. 722,750 (1991). -The district court denied Fetherolf s Rule 60(b) motion and

declined to issue a COA. Fetherolf then unsuccessfully applied to this court for a COA. Fetherolf

v. Warden, No. 20-4323 (6th Cir. June 15,2021).

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Fetherolf initially filed a motion for relief from judgment under Rule 60(b)(1) on

September 22, 2020, which the district court denied on November 23, 2020. Fetherolf did not

appeal that order.

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-3Meanwhile, in January 2021, Fetherolf filed another motion under Rule 60(b)(1), which is

at issue here. In his most recent Rule 60(b) motion, Fetherolf advanced two arguments. First, he

argued that his 1ATC subclaims in'Claim 7 that were dependent on facts that were not a paft“of the ”

trial record should be considered on the merits because (1) the Ohio Court of Appeals never

considered those subclaims, and (2) the absence of counsel in his initial state post-conviction

proceeding is cause to excuse any procedural default of those subclaims, pursuant to the Supreme

Court’s decisions in Martinez v. Ryan, 566 U.S. 1,17 (2012), and Trevino v. Thaler, 569 U.S. 413,

423 (2013). Second, Fetherolf argued that his claims concerning the admission of “other acts”

evidence and prosecutorial misconduct (Claims 1 & 5) “should be considered on [their] merits

upon a showing of cause and prejudice from the arguments [m]ade in” Claim 8 (ineffective

assistance of appellate counsel). The district court considered Fetherolf s filing as a “true” Rule

60(b) motion (as opposed to a second or successive § 2254 petition) and determined that Fetherolf

was not entitled to relief under Rule 60(b)(1). The district court again declined to issue a COA.

This appeal followed.

As a preliminary matter, the district court properly considered Fetherolf s filing as a true

Rule 60(b) motion because the arguments raised therein—which challenged the district court’s

previous ruling that Fetherolf had procedurally defaulted several of his federal habeas claims—

“attackfed], not the substance of the federal court’s resolution of a claim on the merits, but some

defect in the integrity of the federal habeas proceedings.” Gonzalez v. Crosby, 545 U.S. 524, 532

(2005).

Fetherolf now seeks a COA from this court to challenge the district court’s rejection of the

first argument advanced in his Rule 60(b) motion—that his non-record-based IATC subclaims

should be considered on the merits. His failure to raise his second Rule 60(b) argument in his

COA application means that that argument is effectively abandoned. See Jackson v. United States,

45 F. App’x 382,385 (6th Cir. 2002) (per curiam). “[T]his court will not entertain an appeal from

the denial of a Rule 60(b) motion in [a § 2254] proceeding unless the petitioner first obtains a

COA.” Johnson v. Bell, 605 F.3d 333, 339 (6th Cir. 2010). A COA may be issued “only if the

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-4applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.G.

§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322,336 (2003). In the context of a Rule 60 motion,

“the CO Aquestion is... whether a reasonable jurist could conclude that the District Court abused

its discretion in declining to reopen the judgment.” Buckv. Davis, 137 S. Ct. 159,111 (2017).

A district court may vacate a final judgment under Rule 60(b)(1) due to “mistake,

inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Rule 60(b)(1) “is intended

to provide relief in only two situations: (1) when a party has made an excusable mistake or an

attorney has acted without authority, or (2) when the judge has made a substantive mistake of law

or fact in the final judgment or order.” United States v. Reyes, 307 F.3d451,455 (6th Cir. 2002).

Fetherolfgoes the second route, arguing in his COA application that, contrary to the district court’s

ruling, his lack of counsel during his initial state post-conviction proceeding was cause for any

default of his non-record-based IATC subclaims, pursuant to the Supreme Court’s decisions in

Martinez and Trevino, and this court’s decision in White V. Warden, 940 F.3d 270 (6th Cir. 2019).

The Supreme Court traditionally has held that a prisoner has no constitutional right to an

attorney in state post-conviction proceedings and, consequently, any inadequate assistance by state

post-conviction counsel cannot constitute cause to excuse a habeas petitioner’s procedural default

of his claims in state court. Coleman, 501 U.S. at 752, 757. In Martinez, however, the Supreme

Court carved out a “narrow exception” to Coleman, holding that ineffective assistance or absence

of counsel during initial-review state collateral proceedings can establish cause for a petitioner’s

procedural default of an IATC claim. 566 U.S. at 9,17. The petitioner’s procedural default will

not bar a federal habeas court from hearing a “substantial” IATC claim if state law required that

the IATC claim be raised first in an initial-review post-conviction proceeding and no counsel

assisted the petitioner during that proceeding or counsel’s assistance in that proceeding was

ineffective. Id. at 17.

The following year, the Supreme Court decided Trevino, which clarified and expanded

Martinez to hold that a federal habeas court can find cause to excuse a petitioner’s procedural

default where (1) the IATC claim is “substantial,” (2) the “cause” consists of a lack of counsel or

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-5ineffective counsel during the state collateral review proceeding, (3) the state collateral review

proceeding was the initial review proceeding for the petitioner’s IATC claim, and (4) state law

require’s_fliatThe IATC'clainfbe’raised iifffie iiutialreview^pbst-cbhvictibn proceeding. 569 U.S.

at 423. But the Trevino court modified the fourth element to situations where state law does not

provide most defendants with a “meaningful opportunity” to present lATC claims on direct appeal.

Id. at 428-29.

This court has “held that Martinez does not apply in Ohio because Ohio permits ineffectiveassistance-of-trial-counsel claims on direct appeal,” and, until recently, had questioned whether

Trevino applies to Ohio prisoners. Williams v. Mitchell, 792 F.3d 606, 615 (6th Cir. 2015); see

also Hill v. Mitchell, 842 F.3d 910, 937 (6th Cir. 2016). But in 2019, this court applied the

Martinez-Trevino exception to excuse the procedural default of an Ohio prisoner’s IATC claim.

White, 940 F.3d at 277-78. In that case, the petitioner’s appellate counsel had advised him that the

IATC claim at issue could be adequately addressed on direct appeal, but the Ohio Court of Appeals

ultimately determined that that claim required factual development beyond the record and

suggested that it should be raised instead in post-conviction proceedings. Id. at 272-74. By the

time that the state appellate court issued its decision, however, the deadline to file a post-conviction

petition had passed, and the petitioner had no post-conviction counsel. Id. This court held that

Trevino applied to the petitioner’s claim because these circumstances, coupled with “the tight

procedural timeline imposed by Ohio’s post-conviction-relief statutef,] left [the pro se prisoner]

without a ‘meaningful opportunity’ to obtain review of his substantial ineffective-assistance

claim.” Id. at 278 (citing Trevino, 569 U.S. at 428).

Although the Martinez-Trevino exception may apply to some Ohio prisoners, see id. at

277-78, it does not apply to Fetherolfs case. As this court explained in its order denying

Fetherolf s COA application to appeal of the denial of his § 2254 petition, all of Fetherolfs IATC

subclaims are procedurally defaulted as a result of his failure to exhaust them in the Ohio appellate

courts. Fetherolf, No. 20-3565, slip op. at 8; see also O’Sullivan v. Boerckel, 526 U.S. 838, 842

(1999). That procedural default occurred when Fetherolf failed to appeal the state trial court’s

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-6denial of his post-conviction petition, father than from his failure to present the IATC subclaims

in his initial post-conviction proceeding. Boerckel, 526 U.S. at 845. And the Supreme Court

explaihed in Martinez that die procedural-default exception does not extend to errors in any

proceeding beyond initial-review state collateral proceedings. 566 U.S. at 16. Therefore, Fetherolf

cannot establish cause and prejudice to excuse the procedural default of his IATC subclaims. See

West v. Carpenter, 790 F.3d 693, 698 (6th Cir. 2015).

In any event, even if the Martinez-Trevino exception did apply to this case, it would not

assist Fetherolf because reasonable jurists could not debate the district court’s determination that

his non-record-based IATC subclaims are not strong enough to satisfy that exception’s first

requirement—that they qualify as “substantial.” To be “substantial,” an IATC claim must have

“some merit” under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

Martinez, 566 U.S. at 14. To prevail on an IATC claim, a petitioner must establish that counsel’s

performance was deficient and that he suffered prejudice as a result. Strickland, 466 U.S. at 687.

The test for prejudice is whether “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

Fetherolf raised no less than 18 IATC subclaims in his federal habeas petition, only three

of which were based on facts not apparent from the trial record. Those three non-record-based

IATC subclaims all concerned counsel’s alleged failure to investigate or put on a defense of any

kind. But Fetherolf did not make a substantial showing that he was prejudiced by counsel’s alleged

deficient performance in light of the overwhelming evidence of his guilt that was presented at trial.

That evidence included, among other things, testimony from a social worker that A.C. had told her

that Fetherolf “swirl[ed] his finger on her” vagina, testimony from the physician who physically

examined A.C. that she believed that A.C. had been sexually abused, DNA testing showing that

male DNA that was discovered in the crotch area of A.C. ’s underwear was consistent with a sample

of Fetherolf s DNA (the estimated frequency of the DNA profile was 1 in every 4,167 male

individuals), and testimony from a DNA analyst that the DNA present in A.C.’s underwear was

more than what she would usually find with simple touching or handling of underwear. See

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-7Fetherolf, 2017 WL 1316207, at *3. And although Fetherolf faulted counsel for not retaining an

expert to rebut the State’s medical and scientific evidence, he failed to specifically identify an

expert who could have supported his defense and was reasonably available at the time of trial. See

Tinsley v. Million, 399 F.3d 796, 808 (6th Cir. 2005).

Based on the foregoing, no reasonable jurist could conclude that the district court abused

its discretion in denying Fetherolf s motion for relief from judgment. See Buck, 137 S. Ct. at 111.

Accordingly, Fetherolf s COA application is DENIED aind his motion for pauper status is

DENIED as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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Case: 2:19-cv-00168-SDM-EPD Doc#: 106 Filed: 11/16/21 Page: 1 of 5 PAGEID #: 4183

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL FETHEROLF,

Petitioner,

v.

Case No. 2:19-cv-168

Judge Sarah D. Morrison

Magistrate Judge Elizabeth P.

WARDEN, CHILLICOTHE Deavers CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

This matter is before the Court for consideration of Petitioner Michael

Fetherolfs Motion for Certificate of Appealability (“COA”). (ECF No. 104.) The time

for filing a response has passed, and none was filed. Accordingly, Petitioner’s

Motion is ripe for consideration. For the reasons set forth below, the Motion is

DENIED.

I.

BACKGROUND

This Court entered judgment dismissing Petitioner’s petition for writ of

habeas corpus on April 22, 2020. (ECF No. 75.) On September 17, 2020, the United

States Court of Appeals for the Sixth Circuit denied his applications for certificate of

appealability. (ECF No. 83.) Petitioner then filed two motions to set aside

judgment under Rule 60(b). (ECF Nos. 84, 91.) This Court denied each. (ECF Nos.

86, 92.) The United States Supreme Court denied Petitioner’s petition for writ of

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certiorari on March 22, 2021. (ECF No. 100.) Petitioner then filed, and this Court

denied, a third motion to set aside judgment. (ECF Nos. 98,102.) Petitioner now

seeks a COA from the third denial.

II.

LEGAL STANDARD

A habeas petitioner seeking appellate review of a denial of a Rule 60(b)

motion for relief from judgment may only proceed if he or she obtains a COA.

United States v. Hardin, 481 F.3d 924, 926 (6th Cir. 2007). A COA will issue only if

the petitioner has made a substantial showing of the denial of a constitutional right.

28 U.S.C. § 2253(c)(2). To do so, a petitioner must show “that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were ‘adequate to

deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). In Moody v.

United States, the United States Court of Appeals for the Sixth Circuit cautioned

that “a court should not grant a certificate without some substantial reason to think

that the denial of relief might be incorrect,” and “[t]o put it simply, a claim does not

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merit a certificate unless every independent reason to deny the claim is reasonably

debatable.” 958 F.3d 485, 488 (6th Cir. 2020) (emphasis in original).

III.

ANALYSIS

Although not a model of clarity, Petitioner advances several arguments in

support of- his Motion.- Each is unavailing.

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First, Petitioner argues that the Court erred by using the standard under

Rule 60(b)(6), rather than Rule 60(b)(1), in denying his third Rule 60(b) Motion.

(ECF No. 104, PagelD # 4168.) But the Court expressly held that “Petitioner

provides no grounds for relief under Rule 60(b)(1) or 60(b)(6).” (ECF No. 102,

PagelD # 4158 (emphasis added).)

Second, he argues that the Court erred in deciding that he did not meet the

“Martinez-Trevind’ exception to procedural default because the Court concluded

that Petitioner’s claims were not substantial. (ECF No. 104, PagelD # 4169.) In

Petitioner’s view, the substantiality determination was premature as, in both

Martinez and Trevino, the Supreme Court first found that petitioners had

demonstrated cause to excuse to the procedural default and then remanded to the

lower court for substantiality determination. (Id. at PagelD # 4173 (citing Trevino v.

Thaler, 569 U.S. 413, 429 (2013); Martinez v. Ryan, 566 U.S. 1, 18 (2012)).) Yet, in

neither of those cases did the Supreme Court hold that the cause determination

must precede the substantiality determination. Moreover, Petitioner’s argument

reaffirms that it is the province of the district court to make that substantiality

determination.

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Third, Petitioner argues that the Court improperly ignores that the

ineffective assistance claim was not raised on his initial postconviction, which was

not exhausted, but in a subsequent motion for new trial, which was exhausted.

(ECF No. 104, PagelD # 4169-70.) Petitioner ignores that the Sixth Circuit upheld

the dismissal of the ineffective assistance of trial counsel as procedurally defaulted

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by holding “that reasonable jurists could not debate the dismissal.” (See ECF No.

102, PagelD # 4158.) Petitioner has not demonstrated why the Court is not bound

by the Sixth Circuit’s decision and by the law of the case doctrine. United States v.

Anglin, 601 F.3d 523, 527 (6th Cir. 2010) (internal citation omitted). Further, the

Court’s dicta regarding exhaustion was merely an alternative explanation as to why

Petitioner does not come within the Martinez-Trevino exception. (ECF No. 102,

PagelD # 4158.) It is not grounds for reasonable disagreement as to the Court’s

Order denying Petitioner’s third Rule 60(b) motion.

Fourth, Petitioner argues that trial counsel fell well below the standard for

competent representation and that the ineffective assistance prejudiced him,

claiming: “Fetherolf has satisfied all required showings, and the district court

should have granted the motion. Jurists of reason could and would disagree with

the district court’s decision.” (ECF No. 104, PagelD # 4175, 4178.) This is nothing

more than a rehashing off his ineffective assistance claim that this Court has

already dismissed as procedurally defaulted, and the Sixth Circuit has held that

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reasonable jurists could not disagree with that decision. The argument is no more

persuasive now than it was previously.

Finally, Petitioner argues that jurists could reasonably debate whether the

district court applied the correct standard in finding he had not met the

requirements of Rule 60(b)(1)—specifieally^-that the-Court’s conclusion-that all

arguments had been raised and rejected is not the relevant standard for Rule

60(b)(1) challenge. (See id.) This was not a misapplication of the standard, but a

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recognition that Petitioner had failed to meet his burden of showing “mistake,

inadvertence, surprise, or excusable neglect[.]” Fed.R.Civ.P. 60(b)(1). Absent such a

showing, reasonable jurists could not disagree with the Court’s denial of his third

Rule 60(b) motion.

IV.

CONCLUSION

For the reasons set forth above, Petitioner’s Motion for Certificate of

Appealability (ECF No. 104) is DENIED. Because reasonable jurists would not

disagree with the Court’s conclusions, a certificate of appealability shall not issue.

IT IS SO ORDERED.

Isl Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL FETHEROLF,

Petitioner,

Case No. 2:19-cv-168

v.

Judge Sarah D. Morrison

Chief Magistrate Judge Elizabeth

WARDEN, CHILLICOTHE P. Deavers CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

This matter is before the Court for consideration of Petitioner Michael

Fetherolf s Motion to Set Aside Default Judgment Pursuant to Civ. R. 60(b)(1)—(6).

(ECF No. 98.) The time for filing a response has passed, and none was filed.

Accordingly, Petitioner’s Motion is ripe for consideration. For the reasons set forth

below, the Motion is DENIED.

I.

BACKGROUND

As the Motion sub judice is Petitioner’s third seeking relief from final

judgment dismissing his claims (see ECF Nos. 84, 91), the history of this case is

worn thin from re-telling. The Court will be brief in discussing it here.

This Court entered judgment dismissing Petitioner’s petition for writ of

habeas corpus on April 22, 2020. (ECF No. 75.) On September 17, 2020, the United

States Court of Appeals for the Sixth Circuit denied his applications for certificate of

appealability. (ECF No. 83.) Petitioner then filed two motions to set aside

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judgment under Rule 60(b). (ECF Nos. 84, 91.) This Court denied each. (ECF Nos.

86, 92.) Most recently, the United States Supreme Court denied Petitioner’s petition

for writ of certiorari on March 22, 2021 (ECF No. 100.)

Petitioner now—again—seeks reconsideration of the April 22, 2020 judgment

dismissing his claims.

II.

LEGAL STANDARD

Rules 60(b)(1) and 60(b)(6) provide that a court “may relieve a party... from a

final judgment, order, or proceeding” based on “mistake, inadvertence, surprise, or

excusable neglect;” or “any other reason that justifies relief.” Fed. R. Civ. P.

60(b)(1), (6). However, public policy favoring finality of judgments and termination

of litigation limits application of the rule. Tyler v. Anderson, 749 F.3d 499, 509 (6th

Cir. 2014) (citing Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009)).

“[R]elief under Rule 60(b) is ... extraordinary.” Zucker v. City of Farmington

Hills, 643 F. App’x 555, 562 (6th Cir. 2016). A Rule 60(b) motion is neither a

substitute for, nor a supplement to, an appeal. GenCorp, Inc. v. Olin Corp., 477

F.3d 368, 373 (6th Cir. 2007). “For this reason, arguments that were, or should

have been, presented on appeal are generally unreviewable on a Rule 60(b)(6)

motion.” Id. “Relief under Rule 60(b) is not appropriate where... a party unhappy

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with the Court’s ruling simply reargues her case.” Bonds v. Barker, No. 1:18cvll49, 2019 WL 168326, at *2 (N.D. Ohio Jan. 11, 2019) (citing GenCorp, Inc., All

F.3d at 368). “Rule 60(b)(6) applies only in exceptional or extraordinary

circumstances where principles of equity mandate relief.” West v. Carpenter, 790

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F.3d 693, 696-97 (6th Cir. 2015) (citing McGuire v. Warden, Chillicothe Corr. Inst.,

738 F.3d 741, 750 (6th Cir. 2013)). “In other words, Rule 60(b) is to be used rarely—

especially in habeas corpus.” Hand v. Houk, No. 2:07-cv-846, 2020 WL 1149843, at

*3 (S.D. Ohio Mar. 10, 2020) (Watson, J.) (citing Gonzalez v. Crosby, 545 U.S. 524,

535 (2005)).

Further, Rule 60(b)(6) “does not grant a defeated litigant ‘a second chance to

convince the court to rule in his or her favor by presenting new explanations, legal

theories, or proof.’” Johnson v. Merlak, No. 4:18-cv-1062, 2019 WL 1300215, at *2

(N.D. Ohio Mar. 21, 2019) (quoting Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385

(6th Cir. 2001)). Finally, “a party seeking relief under Rule 60(b) bears the burden

of establishing the grounds for such relief by clear and convincing evidence.” InfoHold, Inc. v. Sound Merck., Inc., 538 F.3d 448, 454 (6th Cir. 2008).

III.

ANALYSIS

Petitioner’s Motion focuses on the Court’s application of procedural default,

which may be properly addressed under Rule 60(b). See Gonzalez, 545 U.S. at 532

n.4. Accordingly, this Court has jurisdiction to adjudicate the Motion.

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Petitioner raises two arguments. Each is unavailing. First, Petitioner argues

that Claims Seven (ineffective assistance of trial counsel) and Eight (ineffective

assistance of appellate counsel) should be heard because the state appellate court

did not consider those claims. (ECF No. 98, PagelD # 4071.) He further argues that

any-procedural default should-be excused under the MartinezTrevino exception for

claims that must first be raised in postconviction proceedings.

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(Id. (citing Trevino v. Thaler, 569 U.S. 413 (2013); Martinez v. Ryan, 566 U.S. 1

(2012)).) This Court dismissed Claims Seven and Eight as procedurally defaulted

(ECF No. 75, PagelD # 3779), and the Sixth Circuit concluded that reasonable

jurists could not debate the dismissal (ECF No. 83, PagelD # 3844-46). Further,

Martinez-Trevino applies only when there has been a substantial claim of ineffective

assistance. See Trevino, 569 U.S. at 429 (quoting Martinez, 566 U.S. at 17).

Petitioner’s ineffective assistance claim is not substantial (see, e.g., ECF No. 75,

PagelD # 3778-79, 3781-82)—accordingly, the Martinez-Trevino exception cannot

excuse the procedural default. Moreover, the Court is unaware of any caselaw

suggesting that Martinez-Trevino extends to the facts at hand, where Petitioner

raised the ineffective assistance claims in a postconviction petition but failed to

appeal from its denial, thus depriving the state courts of a “full opportunity” to

resolve the issue. (Id., PagelD # 3778 (quoting O’Sullivan v. Boerckel, 526 U.S. 838,

845 (1999)).)

Second, Petitioner argues that that Claims One (improper admission of other

acts evidence) and Five (prosecutorial misconduct) should be considered upon a

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showing of cause and prejudice, and that Claim Eight should be considered as to

appellate counsel’s failure to raise certain arguments. (ECF No. 98, PagelD #

4103.) Each of these arguments has been made and rejected. (See, e.g., ECF No. 83,

PAGEID# 3840-43.)

Petitioner provides no grounds for relief-under-Rule 60(b)(-l-)-or-60(b)(6):

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IV.

CONCLUSION

For the reasons, set forth above, Petitioner’s Motion to Set Aside Default

Judgment Pursuant to Civ. R. 60(b)(l)-(6) (ECF No. 98) is DENIED.

IT IS SO ORDERED.

Is! Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL FETHEROLF,

Petitioner,

v.

Case No. 2:19-cv-168

Judge Sarah D. Morrison

Chief Magistrate Judge Elizabeth

A. Preston Deavers

WARDEN, CHILLICOTHE

CORRECTIONAL

INSTITUTION,

Respondent.

OPINION AND ORDER

On April 22, 2020, Judgment was entered dismissing the petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 76.) The United States

Court of Appeals for the Sixth Circuit denied Petitioner’s request for a certificate of

appealability. (ECF No. 83.) On October 1, 2020, the Court denied Petitioner’s

motion for reconsideration. (ECF No. 86.) On November 23, 2020, the Court denied

Petitioner’s Petition for Rehearing and Rehearing en Banc and Motion to Stay.

(ECF No. 90.) Petitioner now has filed a Motion to Set Aside Default Judgment and

Re-Open Habeas Proceedings Pursuant to Rule 60(b)(1) and (6) of the Federal Rules

of Civil Procedure. (ECF No. 91.) For the reasons that follow, this most recent

motion for reconsideration (ECF No. 91) is DENIED.

Petitioner again seeks reconsideration of the final judgment of dismissal of

his claims as procedurally defaulted. He again asserts that he has established

cause and prejudice for his failure to raise on appeal a claim of insufficiency of the

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evidence based on the ineffective assistance of appellate counsel. He contends that

this Court, and the Ohio Court of Appeals, failed to consider the entire record and

ignored inconsistent, ambiguous, and conflicting evidence regarding digital

penetration of the alleged victim in rejecting this claim. (ECF No. 91, PAGEID

# 3948-52.) Additionally, Petitioner now argues that the trial court issued

improper jury instructions on the issue, in violation of Ohio law. (PAGEID # 395257.) He further complains that the state appellate court improperly addressed

arguments not raised in his motion for a new trial, without providing him notice,

denying him due process and establishing cause for any procedural defaults.

(PAGEID # 3958-65.) These arguments do not assist him.

As previously discussed, Rules 60(b)(1) and 60(b)(6) provide that a court “may

relieve a party. . . from a final judgment, order, or proceeding” based on “mistake,

inadvertence, surprise, or excusable neglect” or “any other reason that justifies

relief.” Id. However, public policy favoring finality of judgments and termination of

litigation limits application of the rule. Tyler v. Anderson, 749 F.3d 499, 509 (6th

Cir. 2014) (citing Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009)). In short

‘“relief under Rule 60(b) is . . . extraordinary.” Moore v. United States, No. 14-114DLB-HAI, 2018 WL 5046065, at *1 (E.D. Ky. Oct. 17, 2018) (citing Zucker v. City of

Farmington Hills, 643 F. App’x 555, 562 (6th Cir. 2016). A Rule 60(b) motion

should not serve as a substitute for, or supplement to, an appeal. Johnson v.

Collins, No. 19-3616, 2019 WL 7187355, at *2 (6th Cir. 2019) (quoting GenCorp, Inc.

v. Olin Corp., All F.3d 368, 373 (6th Cir. 2007)). Thus, arguments that have or

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should have been presented on appeal generally are not reviewable under

Rule 60(b). Id. “Relief under Rule 60(b) is not appropriate where. . . a party

unhappy with the Court’s ruling simply reargues her case.” Bonds v. Barker, No.

l:18-cv-1149, 2019 WL 168326, at *2 (N.D. Ohio Jan. 11, 2019) (citing GenCorp,

Inc., All F.3d at 368). “Rule 60(b)(6) applies only in exceptional or extraordinary

circumstances where principles of equity mandate relief.” West u. Carpenter, 790

F.3d 693, 696-97 (6th Cir. 2015) (citing McGuire v. Warden, Chillicothe Corr. Inst.,

738 F.3d 741, 750 (6th Cir. 2013)). It should rarely be used—especially in habeas

corpus. Hand v. Houk, No. 2:07-cv-846, 2020 WL 1149849, at *3 (S.D. Ohio Mar. 10,

2020) (citing Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). Further, Rule 60(b)(6)

“does not grant a defeated litigant ‘a second chance to convince the court to rule in

his or her favor by presenting new explanations, legal theories, or proof.”’ Johnson

v. Merlak, No. 4:18-cv-1062, 2019 WL 1300215, at *2 (N.D. Ohio Mar. 21, 2019)

(citing Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001)). A claim of

legal error, unaccompanied by facts establishing extraordinary and exceptional

circumstances, will not provide a basis for relief under Rule 60(b)(6). West v. Bell,

No. 3:01-cv-91, 2010 WL 4363402, at *4 (citing Gonzalez, 545 U.S. at 535). “[A]

party seeking relief under Rule 60(b) bears the burden of establishing the grounds

for such relief by clear and convincing evidence.” Moore, 2018 WL 5046065, at *1

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

Petitioner’s challenge to the Court’s application of procedural default may be

addressed under Rule 60(b) and will not be construed as a successive § 2255 motion

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subject to authorization for filing from the United States Court of Appeals for the

Sixth Circuit. Gonzalez v. Crosby, 545 U.S. 524, 532 n.4. (2005).

The record reflects no basis for relief. This Court already has rejected

Petitioner’s arguments that his appellate counsel performed in a constitutionally

ineffective manner by failing to raise on appeal a claim of insufficiency of the

evidence. {Opinion and Order, ECF No. 75, PAGEID # 3781-82.) The Court will

not now again address this same issue here. Moreover, Petitioner did not

previously raise a claim regarding the trial court’s allegedly improper jury

instructions on the elements of the rape charge in the Ohio courts. This same issue

therefore cannot serve as cause for his procedural default. See Teitelbaum v.

Turner, No. 2:17-cv-583, 2018 WL 2046456, at *22 (S.D. Ohio May 2, 2018) (citing

Edwards v. Carpenter, 529 U.S. 446, 452 (2000)). The record does not support

Petitioner’s argument that the Ohio courts failed to provide him adequate notice of

its decisions denying his motion(s) for a new trial or improperly addressed issues he

did not raise in those proceedings or that any purported error in those proceedings

serves as cause for his procedural defaults. As previously noted, the Sixth Circuit

also has concluded that reasonable jurists would not debate the dismissal of

Petitioner’s claims as procedurally defaulted. (ECF No. 83, PAGEID # 3844.)

Again, Petitioner has provided no grounds to conclude otherwise.

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DISPOSITION

Petitioner’s Motion to Set Aside Default Judgment and Re-Open Habeas

Proceedings Pursuant to Rule 60(b)(1) and (6) of the Federal Rules of Civil

Procedure (ECF No. 91) is DENIED.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE

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