UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHANCHEZ D. STEWART,

Petitioner, Civil Action No. 15-CV-11919 

HON. GEORGE CARAM STEEH

v. UNITED STATES DISTRICT JUDGE

DUNCAN MACLAREN,

Respondent.

________________________/

OPINION AND ORDER DENYING THE RULE 60(B) MOTION

FOR RELIEF FROM JUDGMENT, DECLINING TO ISSUE A

CERTIFICATE OF APPEALABILITY, AND DENYING

LEAVE TO APPEAL IN FORMA PAUPERIS

This Court dismissed petitioner’s application for a writ of habeas corpus on

the ground that the petition was filed outside of the one year statute of limitations

for habeas petitions contained in 28 U.S.C. § 2244(d)(1). The Court denied

petitioner a certificate of appealability and leave to appeal in forma pauperis.

Stewart v. MacLaren, No. 15-CV-11919, 2016 WL 6995732 (E.D. Mich. Nov. 30,

2016).

Petitioner has filed a Rule 60(b) motion for relief from judgment. For the

reasons that follow, the motion is DENIED.

A Rule 60(b) motion for relief from judgment which seeks to advance one

or more substantive claims following the denial of a habeas petition, such as a

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motion seeking leave to present a claim that was omitted from the habeas petition

due to mistake or excusable neglect, or seeking to present newly discovered

evidence not presented in the petition, or seeking relief from judgment due to an

alleged change in the substantive law since the prior habeas petition was denied,

should be classified as a “second or successive habeas petition,” requiring

authorization from the Court of Appeals before filing, pursuant to 28 U.S.C. §

2244(b). See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). However, when a

habeas petitioner’s Rule 60(b) motion alleges a “defect in the integrity of the

federal habeas proceedings,” the motion should not be transferred to the circuit

court for consideration as a second or successive habeas petition. Gonzalez, 545

U.S. at 532. A Rule 60(b) motion does not raise a claim on the merits when the

motion “merely asserts that a previous ruling which precluded a merits

determination was in error-for example, a denial for such reasons as failure to

exhaust, procedural default, or statute-of-limitations bar.” Id., at 532, n. 4. 

Petitioner claims in his motion for relief from judgment that this Court

misapplied the statute of limitations. Petitioner’s motion, which argues that this

Court misapplied the federal statute of limitations set out in 28 U.S.C. § 2244(d),

constitutes a “true” 60(b) claim which challenges the integrity of the habeas

proceedings and would not be considered a successive habeas petition. See

Gonzalez, 545 U.S. at 533. However, a motion for relief from judgment which

attacks the integrity of a previous habeas proceeding, but is meritless, should

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simply be denied, as would any other motion for relief from judgment that lacks

merit. See Harris v. U.S., 367 F.3d 74, 82 (2nd Cir. 2004). 

Petitioner first argues that the statute of limitations period should not have

commenced to run until the 90 day time period for him to seek certiorari with

the United States Supreme Court expired following the Michigan Supreme

Court’s rejection of his untimely filed application for leave to appeal.

This Court in its summary dismissal order noted that the one year

limitations period normally does not commence until the 90 day period for

seeking certiorari with the United States Supreme Court expires. However, when

a habeas petitioner appeals his or her conviction to the Michigan Court of

Appeals and does not properly or timely file an application for leave to appeal to

the Michigan Supreme Court, the additional ninety days for filing an appeal to the

United States Supreme Court is not taken into account. Stewart v. MacLaren, No.

2016 WL 6995732, at * 2 (citing Gonzalez v. Thaler, 132 S. Ct. 641, 653–54

(2012)). Petitioner did not file a timely application for leave to appeal to the

Michigan Supreme Court. His conviction therefore became final, for purposes of

§ 2244(d)(1)(A), on January 15, 2013, when the fifty six day time period for

seeking leave to appeal with the Michigan Supreme Court expired. Id., at * 3. 

Petitioner had until January 15, 2014 to timely file his petition for writ of habeas

corpus unless the statute of limitations was somehow tolled. Because petitioner

did not file his state post-conviction motion for relief from judgment until

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February18, 2014, which was after the limitations period expired, the petition was

untimely.

A Rule 60(b) motion should be denied when the movant attempts to use

the motion to relitigate the merits of a claim. See Miles v. Straub, 90 F. App’x.

456, 458 (6th Cir. 2004). A movant under Rule 60(b) is also not entitled to relief

when he or she simply rephrases the prior allegations that were contained in the

original complaint. See Johnson v. Unknown Dellatifa, 357 F. 3d 539, 543 (6th

Cir. 2004). A habeas petitioner may not raise arguments during his or her first

federal habeas proceeding, lose those arguments, and then raise the same

arguments based on the same evidence in a Rule 60(b) motion for relief from

judgment. See Brooks v. Bobby, 660 F. 3d 959, 962 (6th Cir. 2011).

This Court will deny this portion of petitioner’s Rule 60(b) motion, because

petitioner is merely using the motion to relitigate the merits of an issue already

decided adversely against him. See Miles, 90 F. App’x. at 458.

Petitioner also argues in his motion for relief from judgment that he is

entitled to equitable tolling because the attorney he hired to represent him on his

state post-conviction motion for relief from judgment erroneously advised him that

the federal statute of limitations did not run until February 18, 2014. 

Petitioner did not argue in his original and amended habeas petitions that

his state post-conviction counsel gave him erroneous advice about the expiration

of the limitations period, although he did claim that his appellate counsel on his

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appeal of right allegedly misinformed him that he could obtain an extension of

time to file an application for leave to appeal with the Michigan Supreme Court

following the affirmance of his conviction on his appeal of right by the Michigan

Court of Appeals. 

A Rule 60(b) motion for relief from judgment “does not provide relief simply

because litigants belatedly present new facts or arguments after the district court

has made its final ruling.” Jinks v. AlliedSignal, Inc., 250 F.3d 381, 387 (6th Cir.

2001). Petitioner thus cannot raise this equitable tolling argument for the first

time in his Rule 60(b) motion. 

In any event, the Court would reject this as a basis for equitable tolling as it

did in its original opinion and order to reject the idea that appellate counsel’s

allegedly inaccurate advice about petitioner’s ability to seek an extension of time

to file an appeal with the Michigan Supreme Court would justify equitable tolling. 

Attorney miscalculation does not justify the equitable tolling of the AEDPA’s

statute of limitations, particularly in contexts where prisoners do not have the

constitutional right to counsel. See Lawrence v. Florida, 549 U.S. 327, 336–37

(2007)(citing Coleman v. Thompson, 501 U.S. 722, 756-757 (1991)). Petitioner is

not entitled to relief from judgment. 

The Court denies petitioner a certificate of appealability. 28 U.S.C. §

2253(c)(1)(A) and F.R.A.P. 22(b) state that an appeal from the district court’s

denial of a writ of habeas corpus may not be taken unless a certificate of

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appealability (COA) is issued either by a circuit court or district court judge. If an

appeal is taken by an applicant for a writ of habeas corpus, the district court judge

shall either issue a certificate of appealability or state the reasons why a

certificate of appealability shall not issue. F.R.A.P. 22(b). To obtain a certificate

of appealability, a prisoner must make a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). A habeas petitioner is required to

obtain a certificate of appealability before he can appeal the denial of a 60(b)

motion for relief from judgment which seeks to challenge the judgment in a

habeas case. See United States v. Hardin, 481 F. 3d 924, 926 (6th Cir. 2007). 

In habeas cases which involve a district court’s denial of a 60(b) motion for

relief from judgment on procedural grounds without reaching the merits of any

constitutional claims, a petitioner should be granted a certificate of appealability

only if he or she is able to make both a substantial showing that he or she had a

valid claim of the denial of a constitutional right, and a substantial showing that

the procedural ruling by the district court is wrong. See Hardin, 481 F. 3d at 926,

n. 1. 

Petitioner is not entitled to a certificate of appealability from the denial of

his motion for relief from judgment, because he failed to make a substantial

showing of the denial of a constitutional right or that this Court’s procedural ruling

was incorrect. The Court will also deny petitioner leave to appeal in forma

pauperis, because the appeal would be frivolous. Myers v. Straub, 159 F. Supp.

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2d 621, 629 (E.D. Mich. 2001).

Based upon the foregoing, IT IS ORDERED that the motion for relief from

judgment [Dkt. # 19] is DENIED.

IT IS FURTHER ORDERED That a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that petitioner will be DENIED leave to appeal in

forma pauperis.

s/George Caram Steeh 

HON. GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

Dated: January 18, 2018

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

January 18, 2018, by electronic and/or ordinary mail and also

on Chanchez Stewart #536676, Alger Maximum Correctional

Facility, N6141 Industrial Park Drive, Munising, MI 49862. 

s/Barbara Radke

Deputy Clerk

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