IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RICHARD A. DAVIDSON, 

 CASE NO. 2:18-CV-00495 

 Petitioner, JUDGE ALGENON L. MARBLEY 

 Chief Magistrate Judge Elizabeth P. Deavers 

 v. 

WARDEN, WARREN 

CORRECTIONAL INSTITUTION, 

 Respondent. 

OPINION AND ORDER 

 On May 21, 2019, Judgment was entered dismissing this action. (ECF No. 38.) On 

October 21, 2019, the United States Court of Appeals for the Sixth Circuit denied Petitioner’s 

request for a certificate of appealability. (ECF No. 41.) On March 30, 2020, the Sixth Circuit 

granted Petitioner’s motion for rehearing on the denial of Petitioner’s motion to compel the State 

to provide his trial transcripts. (ECF No. 42.) On October 16, 2020, the Sixth Circuit affirmed 

this Court’s Judgment. (ECF No. 43.) On February 5, 2021, the Sixth Circuit denied the petition 

for rehearing and motion to remand. (ECF No. 44.) Petitioner now has filed a Motion for Relief 

from Judgment pursuant to Rule 60(b)(1), (6) of the Federal Rules of Civil Procedure, Motion to 

Amend the Motion for Relief from Judgment, Motion to take Judicial Notice, and Memorandum 

in Support. (ECF Nos. 45, 47- 49.) For the reasons that follow, the Motion for Relief from 

Judgment, Motion to Amend the Motion for Relief from Judgment, and Motion to take Judicial 

Notice (ECF Nos. 45, 47, 48) are DENIED. 

 Petitioner seeks reconsideration of the final Judgment of dismissal of this action based on 

his mistake or excusable neglect in failing previously to present all of his claims for relief. 

Petitioner complains that the Ohio courts refused to provide him with a copy of his trial 
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transcripts until December 17, 2020, after he had exhausted state court remedies and federal 

habeas corpus proceedings had concluded. He states that, after he reviewed the trial transcripts, 

he discovered that he had been denied the right to present the affirmative defense of entrapment 

and should have been acquitted in view of the facts. (ECF No. 45, PAGEID # 533.) Petitioner 

requests reopening of his habeas corpus petition to permit the assertion of a claim that the state 

courts unconstitutionally denied him the right to a free copy of his trial transcripts, resulting in a 

manifest miscarriage of justice. (Id., PAGEID # 534.) Petitioner has filed a Motion to Amend 

the Motion for Reconsideration requesting to additionally include a claim challenging the 

constitutionality of O.R.C. § 2907.04(A), Ohio’s statute criminalizing unlawful sexual conduct 

with a minor. Petitioner requests judicial notice of his filing of a motion to impose sanctions 

against the State of Ohio that he filed in connection with his appeal in the United States Court of 

Appeals for the Sixth Circuit. 

 Under Rule 201 of the Federal Rules of Evidence, a district court may take judicial notice 

at any stage of the proceeding of any fact “not subject to reasonable dispute because it: (1) is 

generally known within the trial court's territorial jurisdiction; or (2) can be accurately and 

readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. 

Evid. 201. “[J]udicial notice is available only for ‘adjudicative facts,’ or the ‘facts of the 

particular case,’ as opposed to . . . facts ‘which have relevance to legal reasoning’ . . . . Thus, 

judicial notice is generally not the appropriate means to establish the legal principles governing 

the case.” Wingeart v. Warren, No. 05-74144, 2011 WL 1085032, at *1 (E.D. Mich. March 23, 

2011) (quoting Toth v. Grand Trunk R.R., 306 F.3d 335, 350 (6th Cir. 2002)); see also AbuJoudeh v. Schneider, 954 F.3d 842, 848 (6th Cir. 2020) (“[C]ourts do not take judicial notice of 

documents, they take judicial notice of facts.”) (citations omitted). “[F]ederal courts may take 
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judicial notice of proceedings in other courts of record” and of judicial decisions. Scott v. United

States, No. 2:13-CR-223, 2018 WL 1521792, at *2 (S.D. Ohio Mar. 28, 2018) (citing Wingeart, 

2011 WL 1085032, at *1 (internal citations omitted); In re Montanari, No. 12-33189, 2015 WL 

603874, at *1 n.3 (E.D. Tenn. Feb. 12, 2015) (taking judicial notice of the undisputed facts and 

documents of record in the defendants' bankruptcy case). “The purpose of judicial notice is to 

make a court's acceptance of a well-known or undisputable fact more convenient.” Wingeart, 

2011 WL 1085032, at *1 (citing United States v. Bari, 599 F.3d 176, 180 (2nd Cir. 2010)). 

However, judicial notice does not apply to establish the truth of a factual dispute. In re 

Unumprovident Corp. Sec. Litig., 396 F. Supp. 2d 858, 878 (E.D. Tenn. 2005) (citations 

omitted). 

“[A] court may take notice of the documents and what they say, but it ‘[cannot] 

consider the statements contained in the document for the truth of the matter 

asserted.’” Platt v. Bd. of Comm'rs on Grievs. & Discipline of Ohio Supreme

Court, 894 F.3d 235, 245 (6th Cir. 2018) (quoting In re Omnicare, Inc. Sec. Litig., 

769 F.3d 455, 467 (6th Cir. 2014)). In other words, a court may take judicial 

notice of the document's existence but cannot take judicial notice of the 

document's substance. Id. See also Davis v. City of Clarksville, 492 Fed. Appx. 

572, 578 (6th Cir. 2012). 

Viola v. Ohio Att'y Gen., No. 1:20CV765, 2021 WL 510746, at *6 (N.D. Ohio Feb. 11, 2021). 

“[T]his Court has repeatedly denied motions styled as requests for judicial notice that sought to 

introduce additional evidence concerning a disputed issue of fact.” Abu-Joudeh v. Schneider, 

954 F.3d 842, 849 (6th Cir. 2020) (citations omitted). 

Applied here, Petitioner improperly seeks judicial notice of a motion for sanctions he 

filed against the State of Ohio in connection with his appeal to establish that the State committed 

fraud and engaged in intentionally misleading conduct. (ECF No. 48, PAGEID # 544-45.) 

Further, it does not appear that Petitioner’s request for judicial notice is relevant to any of the 

issues in this habeas corpus petition. Petitioner has failed to provide a copy of the document he 
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refers to. Moreover, the Sixth Circuit already has affirmed this Court’s denial of Petitioner’s 

motion to compel the State to provide transcripts on the grounds that they would not assist him in 

establishing his claims and refused to address Petitioner’s claim on appeal that the state courts 

denied him a free copy of his trial transcripts as beyond the scope of the issues certified for 

appeal. (Order, ECF No. 43, PAGEID # 526.) Petitioner’s Motion to take Judicial Notice (ECF 

No. 48) therefore is DENIED. 

 Petitioner also has filed a Motion for Relief from Judgment pursuant to Rule 60(b) of the 

Federal Rules of Civil Procedure. Rule 60(b)(1), (6) provides: 

Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and 

just terms, the court may relieve a party or its legal representative from a final 

judgment, order, or proceeding for the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; 

*** 

(6) any other reason that justifies relief. 

Rule 60(b)(1) provides relief “(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. Rohner, 634 F. App’x 495, 506 (6th 

Cir. 2015) (citing United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002)). 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)). “Therefore, ‘relief under Rule 60(b) is . . . extraordinary.” Moore v. United States, 

No. 14-114-DLB-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). Moreover, a motion under Rule 

60(b)(1) must be made no more than a year after the entry of the judgment. Fed. R. Civ. P. 
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60(c)(1). “This time limit is jurisdictional, and a district court does not have the power to extend 

the period of limitation for filing such a motion.” Montague v. Lee, No. 2:03-CV-113-JRGMCLC, 2018 WL 505906, at *4 (E.D. Tenn. Jan. 22, 2018) (citing Mitchell v. Rees, 261 F. 

App’x 825, 830 (6th Cir. 2008)). Thus, Petitioner’s motion under the provision of Rule 60(b)(1) 

is untimely. 

Rule 60(b)(6) applies where “exceptional or extraordinary circumstances” and “principles 

of equity mandate relief.” West v. Carpenter, 790 F.3d 693, 696 (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 March 10, 2020) (citing Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). 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. 

4:18cv1062, 2019 WL 1300215, at *2 (N.D. Ohio March 21, 2019) (citing Jinks v. Allied Signal, 

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). Public policy favoring finality of judgments likewise limits application of the 

rule. Blue Diamond Coal Co. v. Trustees of UMWA Ben. Fund, 249 F.3d 519, 524 (6th Cir. 

2001). “[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 Merch., Inc., 538 F.3d 448, 454 (6th Cir. 2008)). Further, a Rule 60(b) 

motion that attempts to add a new ground for relief or attacks the resolution of a former claim on 

the merits will be construed as a successive § 2255 motion subject to authorization for filing 
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from the United States Court of Appeals for the Sixth Circuit. See Schultz v. United States, 2019 

WL 4962588, at *1-2 (S.D. Ohio Oct. 8, 2019) (citing Gonzalez v. Crosby, 545 U.S. 524, 532, 

(2005)); 28 U.S.C. §§ 2244(b)(3)(A); 2255(h). “Unless the court of appeals has authorized a 

second or successive motion, a district court sitting in the Sixth Circuit must transfer the motion 

to the Sixth Circuit Court of Appeals.” In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam). 

The record reflects no basis for relief from the final Judgment of dismissal. Petitioner’s 

proposed new claims would have been readily apparent to him at the time of trial. Moreover, 

this Court has already addressed the issues regarding the constitutionality of O.R.C. § 

2907.04(A) and insufficiency of the evidence in the context of Petitioner’s claim of ineffective 

assistance of appellate counsel. (Report and Recommendation, ECF No. 33.) Petitioner’s 

appellate counsel raised a claim of insufficiency of the evidence on direct appeal. State v. 

Davidson, 12 Dist. Nos. CA2017-08-015, CA2017-08-016, 2018 WL 2095706, at *1-2 (Ohio Ct. 

App. May 7, 2018). Nothing prevented Petitioner from earlier raising these claims. To the 

extent that Petitioner again requests consideration of these claims on the merits or now seeks to 

pursue a new claim for relief (including his assertion that the state courts unconstitutionally 

denied him a free copy of his transcripts), he must obtain authorization for the filing of a 

successive habeas corpus petition from the Sixth Circuit. 

Petitioner’s Motion for Relief from Judgment, Motion to Amend the Motion for Relief 

from Judgment, and Motion to take Judicial Notice (ECF Nos. 45, 47, 48) therefore are 

DENIED. 

IT IS SO ORDERED. 

 

 

 ____________________________________ 

 ALGENON L. MARBLEY 

DATED: May 17, 2021 CHIEF UNITED STATES DISTRICT JUDGE