IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CURTIS MOODY,

Petitioner,

V.

Case No. 3:18-cv-139

TOM SCHWEITZER, Warden, JUDGE WALTER H. RICE

Lebanon Correctional Institution,

Respondent.

DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE

JUDGE'S SUBSTITUTED REPORT AND RECOMMENDATIONS

(DOC. #63); OVERRULING PETITIONER'S OBJECTIONS THERETO

(DOC. #64); OVERRULING PETITIONER'S MOTION FOR RELIEF

FROM JUDGMENT (DOC. #55); DENYING CERTIFICATE OF

APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS;

JUDGMENT TO ENTER IN FAVOR OF RESPONDENT AND AGAINST

PETITIONER; CASE TO REMAIN TERMINATED ON DOCKET

On May 18, 2020, the Court dismissed Petitioner Curtis Moody's Petition for

Writ of Habeas Corpus, and entered judgment against him. Doc. #46. The Sixth

Circuit denied a certificate of appealability. Doc. #52, and the United States

Supreme Court denied a petition for writ of certiorari. Doc. #54.

On September 22, 2021, Petitioner filed a Motion for Relief from Judgment,

Doc. #55, asking the Court to consider newly-discovered evidence in the form of

an expert witness report. At trial, on cross-examination. Defendant's counsel

presented an autopsy diagram to Dr. Lehman, the chief deputy coroner. The

diagram purported to show entrance and exit wounds of the victim. See Doc. #55-

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3, PagelD##1820-21. Dr. Lehman, whose name is printeddXXhe bottom of this

diagram, insisted that he had never seen it before and that it was inaccurate.

Petitioner, who is proceeding pro se, claims that Dayton Police Officer

Thomas J. Cope created that autopsy diagram and then forged Dr. Lehman's

signature on it, thereby giving rise to a claim of fraud on the court. In June of

2021, Petitioner obtained a written report from a handwriting expert who opines

that Officer Cope is, in fact, the individual who handprinted Dr. Lehman's name at

the bottom of the diagram.

Petitioner asked the Court to consider this new evidence under Fed. R. Civ.

P. 60(b)(1) or (2), which allows the Court to grant relief from a final judgment for

various reasons, or Fed. R. Evid. 60(d)(3), which allows the Court to set aside a

judgment for fraud on the court.

United States Magistrate Judge Michael R. Merz issued a Report and

Recommendations, Doc. #56, recommending that the Court deny the motion.

After Petitioner filed Objections, Doc. #59, the matter was recommitted to the

Magistrate Judge who, on October 25, 2021, issued a Substituted Report and

Recommendations, Doc. #63. This matter is currently before the Court on

Petitioner's Objections thereto. Doc. #64.

Based on the reasoning and citations of authority set forth by Magistrate

Judge Michael R. Merz in his Substituted Report and Recommendations, Doc. #63,

as well as upon a thorough de nova review of this Court's file and the applicable

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law, the Court ADOPTS said judicial filing in its entirety. For the following

reasons, the Court OVERRULES Petitioner's Objections thereto. Doc. #64.

To the extent that Petitioner seeks relief under Fed. R. Civ. P. 60(b)(1) or (2),

Magistrate Judge Merz found that his motion was untimely, having been filed

more than 15 months after judgment was entered, and that this Court therefore

lacked jurisdiction to consider it. Doc. #63, PagelD#1881 (citing Fed. R. Civ. P.

60(c)(1)).

To the extent that Petitioner seeks relief under Fed. R. Civ. P. 60(d)(3),

Magistrate Judge Merz found that the claim of fraud on the court, although timely,

was procedurally defaulted, given that the Ohio R. App. P. 26(B) application was

denied as untimely. Id. at PagelD#1882. Magistrate Judge Merz also found that

this claim failed on the merits. To succeed on such a claim, a plaintiff must prove

conduct: (1) on the part of an officer of the court; (2) directed to the "judicial

machinery" itself; (3) that is intentionally false, willfully blind to the truth, or is in

reckless disregard of the truth; (4) that is a positive averment or concealment

when one is under a duty to disclose; and (5) that deceives the court. Johnson v.

Bell, 605 F.3d 333,339 (6th Cir. 2010).

The Magistrate Judge found that Officer Cope was not an "officer of the

court," as that term is commonly defined. Moreover, the autopsy diagram was

produced by the prosecution during discovery, and marked as an exhibit by

defense counsel during Dr. Lehman's cross-examination. Officer Cope did not

present it to the Court as a witness. Nor did he testify that Dr. Lehman drew the

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diagram. The

document doe^

act that Officer Cope handprinted Dr. Lehman's name on the

not render the document "false." The matter was referred to Dr.

Lehman, who performed the autopsy. There is no "signature" on the document

purporting to show that it was authored by Dr. Lehman. In addition, no court was

deceived into l)elieving that Dr. Lehman drew the autopsy diagram in question.

For these reasons. Magistrate Judge Merz recommended that the Court

overrule Petitioner's motion, and deny a certificate of appealability and leave to

appeal in forma pauperis.

In his Objections, Petitioner argues that his Rule 60(b)(2) claims are subject

to equitable tolling under Holland v. Florida, 560 U.S. 631 (2010), given that he

requested the handwriting analysis on April 19, 2021, but did not receive the

expert report until June 3, 2021. To succeed on a claim of equitable tolling.

Petitioner must show that he diligently pursued his rights and that some

extraordinary circumstance stood in his way to prevent timely filing. Id. at 649.

Petitioner argues that he did not obtain funds to request the expert witness

report until April of 2021. However, he has been aware of this claim since at least

2016. See Doc. #55-2, PagelD##1815-16. He has failed to show that he diligently

pursued his rights, or that some extraordinary circumstance prevented his

untimely filinc. Equitable tolling is therefore unwarranted. Moreover, Fed. R. Civ.

P. 6(b)(2) prohibits the Court from extending the time to file a motion under Fed.

R. Civ. P. 60(b. Accordingly, Petitioner's objection is overruled.

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As to Petitioner's claims under Rule 60(d)(3), the Court concludes, for the

reasons discussed at length in the Substituted Report and Recommendations,

that, not only is this claim procedurally defaulted, but it also fails on the merits.

Petitioner simply has not established any of the requisite elements of a claim of

fraud on the court.

As such, the Court OVERRULES Petitioner's Motion for Relief from

Judgment, Doc. #55. Given that Petitioner has not made a substantial showing of

the denial of a constitutional right and, further, that the Court's decision herein

would not be debatable among reasonable jurists, and because any appeal from

this Court's decision would be objectivelyir\\/o\ous, Petitioner is denied a

certificate of appeal ability, and is denied leave to appeal in forma pauperis.

Judgment will be entered in favor of Respondent and against Petitioner.

The captioned case shall remain terminated upon the docket records of the

United States District Court for the Southern District of Ohio, Western Division, at

Dayton.

Date: November 24, 2021

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

(tp - per Judge Rice authorization after his 

review)

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