UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEVON ECHOLS,

Petitioner,

CASE NO. 2:09-CV-10049

v. HONORABLE GEORGE CARAM STEEH

CAROL HOWES,

Respondent.

______________________________/

ORDER DENYING PETITIONER’S LETTER REQUEST

This matter is before the Court on Petitioner’s letter request essentially seeking

relief from judgment under Federal Rule of Civil Procedure 60(b) concerning the Court’s

September 1, 2009 opinion and order granting Respondent’s motion for summary

judgment and dismissing the petition for a writ of habeas corpus on statute of limitations

grounds. The United States Court of Appeals for the Sixth Circuit denied a certificate of

appealability on May 19, 2010. Petitioner asks that the Court “restore the time to file a

habeas petition in this matter” because he filed a (second) motion for relief from

judgment on December 23, 2010 and was granted an appeal of right by the state trial

court. The Michigan Court of Appeals recently issued a decision denying Petitioner

relief and affirming his convictions. People v. Echols, No. 303354 (Mich. Ct. App. June

28, 2012) (unpublished). It does not appear that Petitioner has yet sought leave to

appeal with the Michigan Supreme Court.

A district court may grant relief from a final judgment or order under Rule 60(b)

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only upon a showing of one of 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 of 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).

Petitioner has made no such showing. The Court properly determined that his

habeas petition was untimely at the time of its dismissal decision. If Petitioner was

granted a new appeal of right by the state courts subsequent to the Court’s decision, his

proper recourse is to seek permission from the Sixth Circuit to file a second or

successive federal habeas petition, see 28 U.S.C. § 2244(b)(3)(A); Stewart v. MartinezVillareal, 523 U.S. 637, 641 (1998); Felker v. Turpin, 518 U.S. 651, 664 (1996), after the

full exhaustion of state court remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (“state prisoners must give the state courts one full fair opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner has

not shown that he is entitled to relief from judgment in this case. His letter request is

therefore DENIED. This case remains closed.

IT IS SO ORDERED.

Dated: August 22, 2012

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

August 22, 2012, by electronic and/or ordinary mail and also

on Devon Sharod Echols #369217, Gus Harrison Correctional

Facility, 2727 E. Beecher Street, Adrian, MI 49221.

s/Barbara Radke

Deputy Clerk

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