UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHESTER COLE,

Petitioner,

v. Case No. 08-15234

Hon. Lawrence P. Zatkoff

MARY BERGHUIS,

Respondent.

___________________________________/

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT

This matter comes before the Court on Petitioner’s Motion for Relief from Judgment [dkt

13], in which Petitioner asks this Court to reopen this case to provide him an opportunity to file a

timely notice of appeal. For the reasons set forth below, Petitioner’s Motion is DENIED.

I. INTRODUCTION

Petitioner filed a Petition for Writ of Habeas Corpus on December 22, 2008. On June 25,

2009, Respondent filed her Response to the Petition for Writ of Habeas Corpus, to which Petitioner

replied on August 4, 2009. On November 22, 2010, this Court entered an Order denying the

Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability. Petitioner then filed

the instant Motion for Relief from Judgment on May 17, 2012. 

Petitioner asserts that he is unable to read and write, and was assigned assistance through the

Michigan Department of Corrections’ Legal Writer Program. Petititoner bases his Motion on his

claims that the legal writer assigned to him through the Legal Writer Program incorrectly addressed

his notice of appeal, thereby preventing Petitioner from timely filing such notice. Petitioner further

claims that the letter sent by the legal writer on Petitioner’s behalf that sought to confirm receipt

2:08-cv-15234-LPZ-MKM Doc # 15 Filed 06/28/12 Pg 1 of 4 Pg ID 1227
2

of his notice of appeal was also incorrectly addressed. Through his motion, Petitioner seeks to

reopen this case so as to allow him the opportunity to file a timely notice of appeal. 

II. DISCUSSION

To the extent that Smith wants to “re-open” his 2008 Petition for Writ of Habeas Corpus, he

is essentially seeking post-judgment relief under Federal Rule of Civil Procedure 60(b). To prevail

under Rule 60(b), a party must demonstrate that the Court committed “a clear error of judgment,

such as applying the incorrect legal standard, misapplying the correct legal standard, or relying upon

clearly erroneous findings of fact.” In re Ferro Corp. Derivative Litig., 511 F.3d 611, 623 (6th

Cir.2008).

Though courts have considerable discretion in granting relief from judgment pursuant to

Rule 60(b), that power is limited by public policy favoring the finality of judgments. See Blue

Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.2001).

This is “especially true in an application of subsection (6) of Rule 60(b), which applies only in

exceptional or extraordinary circumstances which are not addressed by the first five numbered

clauses of the Rule.” Id. (quotations & citation omitted). Accordingly, “courts must apply Rule

60(b)(6) relief only in unusual and extreme situations where principles of equity mandate relief.”

Id. 

Petitioner’s motion does not satisfy any of these criteria. First, Petitioner does not challenge

the Court’s November 22, 2010, Order on the merits, thus foreclosing any claim of “a clear error of

judgment,” the “ misappl[ication]of the correct legal standard,” or “rel[iance] upon clearly erroneous

findings of fact.” See In re Ferro Corp., 511 F.3d at 623. Rather, Petitioner’s claims appear to be

that because his notice of appeal was neither timely nor correctly filed, through no fault of his own,

2:08-cv-15234-LPZ-MKM Doc # 15 Filed 06/28/12 Pg 2 of 4 Pg ID 1228
3

the Court should reopen this case and allow Petitioner to file a timely notice of appeal. 

The Court finds, however, that Petitioner has not shown that he exercised due diligence in

keeping himself apprised of the status of this action. Even assuming Petitioner mailed his notice of

appeal to this Court (the incorrect procedure), he sets forth no claim that he ever attempted to timely

follow up or otherwise confirm receipt in the time period within which any notice of appeal was to

be filed. 

Moreover, Petitioner’s circumstances nevertheless do not present an “unusual or extreme

situation” where “principles of equity” mandate relief. After he allegedly mailed his notice of

appeal, Petitioner could have contacted the Court by phone, as he alleges to have done later, to

inquire into the status of his purported notice of appeal. As such, his current claims—that the legal

writer sent his notice of appeal to the incorrect address; that follow up letters inquiring into the status

of the appeal were also sent to incorrect addresses—are unconvincing and simply lack merit.

III. CONCLUSION

Accordingly, Petitioner’s Motion for Relief from Judgment Pursuant to Fed. R. Civ. P. 60(b)

[dkt 13] is DENIED. 

IT IS SO ORDERED.

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: June 28, 2012

2:08-cv-15234-LPZ-MKM Doc # 15 Filed 06/28/12 Pg 3 of 4 Pg ID 1229
4

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on June 28, 2012.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290

2:08-cv-15234-LPZ-MKM Doc # 15 Filed 06/28/12 Pg 4 of 4 Pg ID 1230