UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Willie Harper, 

Petitioner, 

v. 

Carmen Palmer, 

Respondent. 

________________________________/

Case No. 14-cv-13699 

Judith E. Levy 

United States District Judge 

OPINION AND ORDER REOPENING THE CASE TO THE 

COURT’S ACTIVE DOCKET AND TRANSFERRING THE 

MOTION FOR RELIEF FROM JUDGMENT [18] TO THE SIXTH 

CIRCUIT COURT OF APPEALS 

On June 29, 2017, the Court denied petitioner Willie Harper’s 

amended pro se 28 U.S.C. § 2254 habeas corpus petition challenging his 

conviction of three counts of assault with intent to murder, carrying a 

concealed weapon, felon in possession of a firearm, and possession of a 

firearm during the commission of a felony. (Dkt. 16.) The Court also 

denied a certificate of appealability and leave to proceed on appeal in 

forma pauperis. (Id.) Before the Court is petitioner’s pro se motion for 
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relief from judgment under Federal Rule of Civil Procedure 60(b). (Dkt. 

18.) 

Rule 60(b) permits a court to “relieve a party . . . from a final 

judgment, order, or proceedings” under limited circumstances. Fed. R. 

Civ. Pro. 60(b). The Antiterrorism and Effective Death Penalty Act of 

1996 (“AEDPA”) “did not expressly circumscribe the operation of Rule 

60(b),” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005), but its “operation” 

in § 2254 proceedings must be consistent with AEDPA, Franklin v. 

Jenkins, 839 F.3d 465, 476 (6th Cir. 2016) (quoting Gonzalez, 545 U.S. at 

529). And under AEDPA, a district court does not have jurisdiction to 

consider a petitioner’s “second or successive” habeas petition unless the 

petitioner first obtains authorization from the Court of Appeals. 28 

U.S.C. § 2244(b)(3)(A). A second or successive habeas application is one 

that presents a claim already “presented in a prior application” or a new 

claim, unless the petitioner meets one of three exceptions. § 2244(b)(1)–

(2). A Rule 60(b) motion filed in a § 2254 action may be a second or 

successive habeas petition. Gonzalez, 545 U.S. at 530–32. 

A Rule 60(b) motion is a “second or successive” habeas application 

if it puts forth “claims” with a “federal basis” that attack the merits of a 
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state court conviction, Franklin, 839 F.3d at 473 (quoting Post v. 

Bradshaw, 422 F.3d 419, 424 (6th Cir. 2005)), or “if it attacks the federal 

court’s previous resolution of a claim on the merits,” Gonzalez, 545 U.S. 

at 532 & n.4 (emphasis omitted). Cf. Franklin, 839 F.3d at 473 (quoting 

Post, 422 F.3d at 424) (stating that procedural default, exhaustion, and 

the statute of limitations bar are not determinations on the merits). In 

other words, a petitioner may not use a Rule 60(b) motion to “amend to 

try to raise new habeas claims [or] to supplement already litigated claims 

with new evidence.” Moreland v. Robinson, 813 F.3d 315, 323 (6th Cir. 

2016) (citing Gonzalez, 545 U.S. at 531–32).

Petitioner requests relief on his sentencing claim based on 

Robinson v. Woods, 901 F.3d 710 (6th Cir. 2018). (Dkt. 18 at 2.) There, 

the Sixth Circuit granted habeas relief on a challenge to Michigan’s 

sentencing guidelines, holding that the Supreme Court’s decision in 

Alleyne v. United States, 570 U.S. 99 (2013), clearly established that 

Michigan’s mandatory minimum sentencing scheme permitting “judgefound facts to score mandatory sentencing guidelines that resulted in an 

increase of petitioner’s minimum sentence violated petitioner’s Sixth 

Amendment Rights.” Robinson, 901 F.3d at 716–18 (citing Alleyne, 570 
4 

U.S. at 108). He also argues that Robinson creates debate among 

reasonable jurists, requiring the Court to grant a certificate of 

appealability. (Dkt. 18 at 3.) Petitioner’s motion advances claims that 

were in his previous habeas petition, demonstrating it is a second or 

successive habeas application. 

In his habeas petition, he claimed that the state judge erred in 

departing above the sentencing guidelines range, specifically that the 

state judge violated his Sixth Amendment right to a jury trial by relying 

on facts that were not submitted to a jury to score the offense variables 

and calculate a sentencing guidelines range. Petitioner relied upon 

Alleyne, which held that any fact that increases the mandatory minimum 

sentence for a crime is an element of the criminal offense that must be 

proven beyond a reasonable doubt, 570 U.S. at 103, and People v. 

Lockridge, which held that Michigan’s mandatory sentencing guidelines 

scheme violates the Sixth Amendment based on Alleyne, 498 Mich. 358 

(2005). The Court denied relief, holding that Alleyne did not apply and 

Lockridge was not clearly established federal law. (Dkt. 18 at 34–36.) 

Here, petitioner offers Robinson to attack the Court’s determination that 

he was not entitled to habeas relief because Lockridge was not clearly 
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established law. This attacks the Court’s earlier determination of his 

petition on the merits. Therefore, the motion raises a claim previously 

litigated and is a second or successive habeas application. Petitioner 

must obtain an order of authorization from the Sixth Circuit before he 

can file it in this Court. § 2244(b)(3)(A). 

 Accordingly, the Clerk of the Court shall REOPEN the case to the 

Court’s Active Docket and TRANSFER the Motion for Relief from 

Judgment (Dkt. 18) to the Court of Appeals for the Sixth Circuit. 28 

U.S.C. § 1631; see also Moreland, 813 F.3d at 325 (citing In Re Sims, 111 

F.3d 45, 47 (6th Cir. 1997)). 

IT IS SO ORDERED. 

Dated: March 14, 2019 s/Judith E. Levy 

 Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on March 14, 2019. 

s/Shawna Burns 

SHAWNA BURNS 

Case Manager