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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

 

JERMAINE KEITH, 

 Petitioner, Civil No. 14-13340 

 Honorable Terrence G. Berg 

v. 

CARMEN PALMER, 

 Respondent. 

_______________________________/ 

ORDER TRANSFERRING PETITIONER’S MOTION PURSUANT TO 

FED. R. CIV. P. RULE 60(b)(4) TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT (DKT. 17)

 On March 31, 2015, the Court dismissed Michigan state prisoner Jermaine 

Keith’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, because it 

was not timely filed. The Court also denied a certificate of appealability. (Dkt. 10). 

Petitioner filed an application for certificate of appealability in the Sixth Circuit 

Court of Appeals. On September 29, 2015, the Court of Appeals denied the 

application. (Dkt. 16). Now before the Court is Petitioner’s Motion Pursuant to 

Fed. R. Civ. P. Rule 60(b)(4). For the reasons set forth below, the Court transfers 

the motion to the Sixth Circuit Court of Appeals for consideration as an application 

to file a second or successive 28 U.S.C. § 2254 petition. See 28 U.S.C. §§ 1631, 

2244(b); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). 

 Petitioner was convicted of assault with the intent to commit murder, four 

counts of felonious assault, and possession of a firearm during the commission of a 

felony in Wayne County Circuit Court. The Michigan Court of Appeals affirmed his 

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convictions, People v. Keith, No. 278573, 2008 WL 2938787 (Mich. Ct. App. July 31, 

2008), and the Michigan Supreme Court denied his application for leave to appeal. 

People v. Keith, No. 137302, 482 Mich. 1701 (Mich. Nov. 25, 2008). Petitioner filed a 

habeas petition on August 21, 2014. This Court granted the Respondent’s motion 

for summary judgment, holding that the petition was untimely, that Petitioner was 

not entitled to tolling of the limitations period, and that he had not shown a viable 

claim of actual innocence. Petitioner has now filed a Rule 60(b)(4) motion for relief 

from judgment, arguing that the state judgment of conviction was void for want of 

jurisdiction because he was denied his Sixth Amendment right to counsel during his 

appearance before a state magistrate judge for arraignment. 

 Rule 60(b) motions are subject to the restrictions that apply to “second or 

successive” habeas corpus petitions if the movant asserts a claim of error in his 

state conviction. Gonzalez v. Crosby, 545 U.S. 524, 538 (2005). In Gonzalez, the 

Supreme Court explored the difference between a true Rule 60(b) motion and an 

unauthorized second or successive habeas corpus petition. The Supreme Court 

explained that an applicant presents a “claim” under 28 U.S.C. § 2244 if the motion 

“attacks the federal court’s previous resolution of a claim on the merits, since 

alleging that the court erred in denying habeas relief on the merits is effectively 

indistinguishable from alleging that the [applicant] is, under the substantive 

provisions of the statutes, entitled to habeas relief.” Id. at 532. By contrast, a true 

Rule 60(b) motion, instead, “attacks, not the substance of the federal court’s 

resolution of a claim on the merits, but some defect in the integrity of the federal 

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habeas proceedings.” Id. Petitioner’s § 2254 petition did not challenge the state 

trial court’s jurisdiction over his state criminal proceedings. Therefore, this claim 

constitutes a new ground for relief that is subject to the gatekeeping requirements 

of § 2244(b)(2). See id. at 530-32. 

 An individual seeking to file a second or successive habeas petition must first 

ask the appropriate court of appeals from an order authorizing the district court to 

consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Without advance 

authorization, a district court in the Sixth Circuit must transfer the petition or 

motion to the Sixth Circuit Court of Appeals. Sims, 111 F.3d at 47. 

 Accordingly, the Court ORDERS the Clerk of the Court to TRANSFER

Petitioner’s Motion Pursuant to Fed. R. Civ. P. Rule 60(b)(4) (Dkt. 17) to the United 

States Court of Appeals for the Sixth Circuit as required by 28 U.S.C. § 

2244(b)(3)(A) and In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). 

SO ORDERED. 

Dated: July 18, 2016 s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Certificate of Service 

I hereby certify that this Order was electronically submitted on July 18, 

2016, using the CM/ECF system; a copy of this Order was also mailed to the 

Chippewa Correctional Facility, 4269 W. M-80, Kincheloe, MI 49784 directed to 

Petitioner’s attention. 

 s/A. Chubb 

Case Manager 

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