UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WALTER JAMES KINARD,

Petitioner, 

v.

RAYMOND BOOKER,

Respondent.

______________________________/ 

Case Number: 08-14992

HONORABLE AVERN COHN

MEMORANDUM AND ORDER

OVERRULING PETITIONER’S OBJECTIONS (Doc. 46),

ADOPTING REPORT AND RECOMMENDATION (Doc. 42),

DENYING PETITIONER’S MOTION FOR RELIEF FROM JUDGMENT (Doc. 36),

DENYING PETITIONER’S MOTION TO AMEND (Doc. 44),

AND DENYING A CERTIFICATE OF APPEALABILITY

I.

This is a habeas case under 28 U.S.C. § 2254. Petitioner Walter James Kinard

(Petitioner) is a state prisoner serving a life sentence following a 1987 conviction for

armed robbery and possession of a firearm during the commission of a felony. In 2008,

Petitioner filed a petition under § 2254 claiming that he is incarcerated in violation of his

constitutional rights. As will be explained, the Court denied the petition because it was

barred by the statute of limitations. Petitioner later filed a motion for relief from

judgment under Rule 60(b)(4), (5) and (6). The matter was referred to a magistrate

judge for a report and recommendation (MJRR). The magistrate judge recommends

that the motion be denied. Before the Court are Petitioner’s objection to the MJRR. 

Also before the Court is Petitioner’s motion to amend his motion for relief from

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judgement. For the reasons that follow, Petitioner’s objections will be overruled, the

MJRR will be adopted, and Petitioner’s motion for relief from judgment and motion to

amend will be denied. The Court will also deny a certificate of appealability.

II.

Shortly after the petition was filed, the Court referred the matter to a magistrate

judge for a report and recommendation (MJRR). Although the petition raised several

claims, the magistrate judge issued a MJRR recommending that the petition be denied

because it was barred by the one-year the statute of limitations. (Doc. 17). Petitioner

filed objections to the MJRR. (Doc. 20). On August 5, 2010, the Court overruled the

objections, adopted the MJRR, and denied the petition as untimely. (Doc. 22). The

Sixth Circuit granted a certificate of appealability on the issue of whether the petition

was timely filed. Kinard v. Booker, No. 10-2129 (Mar. 22, 2011). The Sixth Circuit later

affirmed the dismissal of the petition as untimely. Kinard v. Booker, No. 10-2129 (Sept.

22, 2011). The Supreme Court denied certiorari. Kinard v. Booker, 132 S.Ct. 2105

(Apr. 30, 2012). 

Just over two years after the Court dismissed the habeas petition, on August 22,

2012, Petitioner filed the instant motion for relief from judgment. (Doc. 26). Petitioner

argues that the Court should consider his sentencing claim on the merits.

On September 6, 2012, the Court transferred the motion to the Sixth Circuit as a

successive habeas petition under 28 U.S.C. § 2244(b). The Sixth Circuit, concluding

that Petitioner’s motion attacked only this Court’s procedural ruling and thus was not a

prohibited successive petition, transferred the motion back to this Court. See Kinard v.

Booker, No. 12-2183 (6th Cir. June 3, 2013). The Court referred the motion to the

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Petitioner also filed a motion to object to the MJRR (Doc. 45) in which he

requested additional time to file objections to the MJRR. Because Petitioner has filed

motions, this motion is now MOOT.

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magistrate judge who recommends it be denied. (Doc. 42). Petitioner has filed

objections (Doc. 46)1

 and a motion to amend his motion for relief from judgment. (Doc.

44). 

III.

A district court must conduct a de novo review of the parts of a magistrate

judge's report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). The

district "court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate" judge. Id. The requirement of de novo

review "is a statutory recognition that Article III of the United States Constitution

mandates that the judicial power of the United States be vested in judges with life

tenure." United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985).

A general objection, or one that merely restates the arguments previously

presented, is not sufficient to alert the court to alleged errors on the part of the

magistrate judge. An “objection” that does nothing more than state a disagreement with

a magistrate judge's suggested resolution, or simply summarizes what has been

presented before, is not an objection as that term is used in this context. Howard v.

Sec'y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir. 1991).

IV.

“Rule 60(b) allows a party to seek relief from a final judgment, and request

reopening of his case, under a limited set of circumstances including fraud, mistake,

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and newly discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). 

Specifically, Rule 60(b) provides:

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;

(2) newly discovered evidence that, with reasonable diligence, could not have

been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an

earlier judgment that has been reversed or vacated; or applying it prospectively is

no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). 

The magistrate judge carefully considered whether Petitioner has satisfied the

requirements of Rule 60(b)(4), (5) and (6) and concluded Petitioner has not. Petitioner’s

objections fail to convince the Court that the magistrate judge erred. In short, the

petition was properly dismissed as barred by the statute of limitations and Petitioner has

not shown that the Court’s judgment reflecting the same is void, been satisfied or

discharged, or any other reason to justify relief from the judgment. While Petitioner

continues to assert defects with his state court proceedings and state court judgment,

the judgment at issue is the Court’s judgment finding the petition was untimely. 

Petitioner has not put forth a basis for relief from this judgment. 

Regarding Petitioner’s motion to amend his motion for relief from judgment, it too

must be denied. Petitioner seeks to add arguments as to the validity of his state court

judgment. Again, those arguments are not relevant to this Court’s judgment dismissing

the petition on statute of limitations grounds. As such, amendment would be futile. See

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Fed. R. Civ. P. 15. 

V.

Accordingly, for the reasons state above, Petitioner’s objections are

OVERRULED. The MJRR is ADOPTED as the findings and conclusions of the Court.

Petitioner’s motion for relief from judgment is DENIED. Petitioner’s motion to amend is

DENIED.

Moreover, as the magistrate judge recommended, Petitioner is not entitled to a

certificate of appealability (COA) because jurists of reasons would not debate the

Court’s conclusion. See 28 U.S.C. § 2253(c)(2); United States v. Hardin, 481 F.3d 924,

926 (6th Cir. 2007) (stating that “this prerequisite [a COA] is consistent with the

language of section 2253, and therefore hold that [a Petitioner] must obtain a certificate

of appealability before his appeal of the denial of his Rule 60(b)). Accordingly, a COA is

DENIED.

SO ORDERED.

 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: August 2, 2013

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, August 2, 2013, by electronic and/or ordinary mail.

 S/Sakne Chami 

Case Manager, (313) 234-5160

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