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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 MOTION UNDER RULE 60(b)

This matter is before the Court on Petitioner’s motion for 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. Petitioner previously filed a motion for

reconsideration, which this Court denied as untimely on November 16, 2009. In that order,

however, the Court also denied relief because Petitioner and his counsel waived their responsive

arguments, i.e., for equitable tolling of the one-year limitations period, by failing to file a reply

to Respondent’s motion to dismiss the habeas petition as untimely. See Scottsdale Ins. Co. v.

Flowers, 513 F.3d 546, 553 (6th Cir. 2008); Emmons v. McLaughlin, 874 F.2d 351, 358 (6th Cir.

1989) (“It is well established ... that a district court does not abuse its discretion in denying a

Rule 59 motion when it is premised on evidence that the party had in its control prior to the

original entry of judgment.”). A tolling argument cannot be raised for the first time upon

reconsideration. Carter v. Washington Metro. Area Transit Auth., 503 F.3d 143, 145, n. 2 (D.C.

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Cir. 2007); Corrigan v. United States, 223 Fed. Appx. 968, 971 (Fed. Cir. 2007); LandrauRomero v. Banco Popular De Puerto Rico, 212 F.3d 607, 612 (1st Cir. 2000). The same holds

true at this time as to the present motion. Petitioner asserts that counsel was negligent or grossly

negligent in failing to contest the State’s motion. However, any such failures by counsel do not

warrant equitable tolling or relief from judgment in this case. It is well-settled that there is no

constitutional right to counsel in post-conviction proceedings such that a habeas petitioner

cannot claim constitutionally ineffective assistance of counsel in such proceedings. See

Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (“Attorney miscalculation is simply not

sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners

have no constitutional right to counsel.”); Coleman v. Thompson, 501 U.S. 722, 752 (1991);

Abdus-Samad v. Bell, 420 F.3d 614, 632 (6th Cir. 2005) (alleged ineffective assistance of

counsel could not establish cause to excuse procedural default in post-conviction proceedings

because there is no right to counsel in such proceedings); Harris v. McAdory, 334 F.3d 665, 668

(7th Cir. 2003) (citing cases).

Additionally, in denying reconsideration, the Court alternatively construed Petitioner’s

motion as one brought pursuant to Federal Rule of Civil Procedure 60(b) and denied him relief. 

The Court finds no reason to reconsider that decision. A motion for reconsideration which

presents issues already ruled upon by the court, either expressly or by reasonable implication,

will not be granted. See Hence v. Smith, 49 F. Supp. 2d 547, 550 (E.D. Mich. 1999); Czajkowski

v. Tindall & Assoc., P.C., 967 F. Supp. 951, 952 (E.D. Mich. 1997). Petitioner has not met his

burden of showing a palpable defect by which the Court has been misled or his burden of

showing that a different disposition must result from a correction thereof, as required by Local

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The state court docket sheet indicates that a transcript was filed on February 5, 2004. 

Petitioner did not file his state court motion for relief from judgment until November 18, 2005.

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Rule 7.1(g)(3).

Furthermore, a district court may grant relief from a final judgment or order under Rule

60(b) only upon a showing of one of the following reasons: (1) mistake, inadvertence, surprise,

or excusable neglect; (2) newly discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior

judgment upon which it is based has been reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective application; or (6) any other reason

justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b). Petitioner has made

no such showing. Even if Petitioner’s appellate counsel had problems obtaining transcripts1

 or

otherwise failed to timely file a direct appeal in the state courts, Petitioner has not established

that such matters prevented him from pursuing relief from judgment in the state courts or seeking

federal habeas relief within the relevant one-year period. See Gordon v. Davis, No. 06-CV11882, 2007 WL 4327779, *4 (E.D. Mich. Dec. 7, 2007) (“The alleged failures of the state trial

court and/or appellate counsel simply did not impair Petitioner's ability to pursue collateral relief

in the state court or habeas relief in federal court in a timely fashion.”). Petitioner had one year

from when his convictions became final in January, 2004 to file a federal habeas petition (or to

seek collateral review in the state courts thereby tolling the one-year limitations period), but he

failed to do so. Petitioner has not shown that he is entitled to relief from judgment in this case. 

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His motion is therefore DENIED. This case is closed.

IT IS SO ORDERED.

Dated: December 14, 2009

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

December 14, 2009, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk

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