UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

D’JUAN GARRETT,

Petitioner,

CASE NO. 2:09-CV-11076

v. JUDGE VICTORIA A. ROBERTS

MAGISTRATE JUDGE PAUL J. KOMIVES

JOHN PRELESNIK,

Respondent.

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REPORT AND RECOMMENDATION ON PETITIONER’S MOTION FOR RELIEF

FROM JUDGMENT UNDER 60(B)(6) (docket #18)

I. RECOMMENDATION: The Court should deny petitioner’s motion for relief from judgment.

II. REPORT:

A. Procedural History

Petitioner D’Juan Garrett filed an application for the writ of habeas corpus on March 23,

2009, challenging his 2004 state court convictions for assault with intent to commit murder and

felon firearm. As grounds for relief, petitioner raised six substantive grounds for relief: (1)

involuntary waiver of jury trial; (2) improper denial of a corporeal lineup; (3) denial of

confrontation; (4) & (5) two separate claims of ineffective assistance of counsel; and (6) newly

discovered evidence. On July 29, 2010, I filed a Report recommending that the Court deny the

petition on the merits. I also recommended that the Court deny petitioner an evidentiary hearing and

certificate of appealability. On June 28, 2011, the Court entered an Order adopting my Report and

Recommendation, denying petitioner’s habeas application, and denying a certificate of appealability.

On August 4, 2011, petitioner filed a notice of appeal. On November 3, 2011, the Sixth Circuit
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dismissed petitioner’s appeal for failing to comply with the time requirement of FED.R.APP.P.4(a).

See Garrett v. Prelesnik, No. 11-1971 (6th Cir. Nov. 3, 2011) (order).

On April 26, 2012, petitioner filed this motion for relief from judgment pursuant to FED.R.

CIV. P. 60(b)(6). In his motion, petitioner seeks relief on two bases. First, petitioner seeks relief so

that he can timely file a notice of appeal. Petitioner contends that his counsel for the habeas

proceedings failed to file a notice of appeal, despite being aware that petitioner desired to appeal and

informing petitioner that he would do so. Second, petitioner contends that the Court erred in

applying the deferential standard of review to his ineffective assistance of counsel claims, because

those claims were not decided on the merits in the state courts. Petitioner therefore asks the Court

to reconsider these claims under a de novo standard of review. For the reasons that follow, the Court

should deny petitioner’s motion.

B. Second Petition Rule and Rule 60(b)

“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, 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). Notwithstanding Rule 60(b), the habeas statutes circumscribe the conditions
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under which a second or successive habeas petition may be considered. In particular, a claim which

has already been adjudicated on the merits must be dismissed, a new claim may not be considered

unless it relies on either a new, retroactive rule of constitutional law or new facts demonstrating

actual innocence, and a successive petition may not be filed in the district court until authorization

is obtained from the court of appeals. See Gonzalez, 545 U.S. at 529-30 (discussing 28 U.S.C. §

2244(b)(1)-(3)). Rule 60(b) applies only to the extent that it is not inconsistent with these rules

governing successive petitions. See id. at 529 (citing Rule 11, 28 U.S.C. foll. § 2254). Generally,

a Rule 60(b) motion which seeks vindication of a substantive claim for relief will be considered a

prohibited successive petition, see id. at 531-32, whereas “[t]hat is not the case . . . when a Rule

60(b) motion attacks, not the substance of the federal court’s resolution of a claim on the merits, but

some defect in the integrity of the federal habeas proceedings.” Id. at 532. As the Court explained,

“[i]f neither the motion itself nor the federal judgment from which it seeks relief addresses federal

grounds for setting aside the movant’s state conviction, allowing the motion to proceed as

denominated creates no inconsistency with the habeas statute or rules.” Id. at 533. Thus, the

question is whether the Rule 60(b) motion “seeks to add a new ground for relief,” or “attacks the

federal court’s previous resolution of a claim on the merits,” id. at 532. If so, the Rule 60(b) motion

is the functional equivalent of a prohibited second or successive habeas petition. 

Here, petitioner’s second ground for relief, attacking the Court’s analysis of his ineffective

assistance of counsel claims, attacks “the substance of the [Court’s] resolution of a claim on the

merits” and “addresses federal grounds for setting aside the movant’s state conviction,” Gonzalez,

545 U.S. at 532-33. Petitioner contends that the Court erred in applying the deferential standard of

review in § 2254(d), and that under de novo review he is entitled to habeas relief. Petitioner’s claim
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that the Court applied the wrong legal standard in analyzing his substantive claim is the functional

equivalent of asserting that claim for relief a second time, and thus is prohibited by § 2244(b). See

Gattis v. Snyder, 686 F. Supp. 2d 469, 474 (D. Del. 2010); cf. Gonzalez, 545 U.S. at 532 (footnote

omitted) (“A motion can also be said to bring a ‘claim’ if it attacks the federal court’s previous

resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the

merits is effectively indistinguishable from alleging that the movant is, under the substantive

provisions of the statutes, entitled to habeas relief.”). Thus, to the extent petitioner seeks

reconsideration of his ineffective assistance of counsel claims, petitioner’s Rule 60(b) motion is the

“functional equivalent” of a second habeas application, and is governed by § 2244(b).

Under § 2244, “[a] claim presented in a second or successive habeas corpus application

under section 2254 that was not presented in a prior application shall be dismissed unless” the

petitioner shows either that “the claim relies on a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that was previously unavailable,” or that “the

factual predicate for the claim could not have been discovered previously through the exercise of

due diligence” and these facts “would be sufficient to establish by clear and convincing evidence

that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of

the underlying offense.” 28 U.S.C. § 2244(b)(2). Whether a successive application satisfies the

exception set forth in § 2244(b)(2), however, is not for the District Court’s determination in the first

instance. Rather, that statute provides that “[b]efore a second or successive application permitted

by this section is filed in the district court, the applicant shall move in the appropriate court of

appeals for an order authorizing the district court to consider the application.” 28 U.S.C. §

2244(b)(3)(A). This requirement transfers to the court of appeals a screening function which the
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district court previously would have performed. See Felker v. Turpin, 518 U.S. 651, 664 (1996).

Because petitioner’s Rule 60(b) motion is the functional equivalent of a successive habeas petition,

and because petitioner has not obtained authorization from the Sixth Circuit to file such a petition,

this Court lacks jurisdiction to consider the merits of the Rule 60(b) motion to the extent it seeks

reconsideration of petitioner’s ineffective assistance of counsel claims. See Smith v. Anderson, 402

F.3d 718, 723 (6th Cir. 2005) (“§ 2244(b)(3) allocates subject matter jurisdiction to the court of

appeals, rather than the district court, in the first instance, over a second or successive habeas

petition.”).

The same does not hold true, however, for that portion of petitioner’s motion seeking to

reopen the time for filing a notice of appeal. That portion of the motion does not attack the Court’s

resolution of the merits of petitioner’s claims, or raise any substantive challenge to his underlying

state court conviction. Rather, the motion seeks only to reopen the time for filing an appeal in

federal court, a procedural matter that has nothing to do with the validity of petitioner’s conviction

or the merits of petitioner’s challenges to that conviction.

C. The Merits of Petitioner’s Motion

On the merits, the Court should conclude that petitioner is not entitled to relief from

judgment so that he may file a notice of appeal. Likewise, if the Court rejects my analysis of the

successive petition issue with respect to petitioner’s challenge to the Court’s resolution of his

ineffective assistance claims, the Court should conclude that petitioner is not entitled to Rule

60(b)(6) relief on the merits.

1. Relief under Rule 60(b)(6) Generally

As noted above, Rule 60(b) provides five specific scenarios justifying relief from judgment.
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Rule 60(b)(6) further authorizes a court to grant relief from judgment for “any other reason that

justifies relief.” FED. R. CIV. P. 60(b)(6). Because “almost every conceivable ground for relief is

covered under the other subsections of Rule 60(b)[,] . . . courts must apply Rule 60(b)(6) relief only

in unusual and extreme situations where principles of equity mandate relief.” In re Ferro Corp.

Derivative Litig., 511 F.3d 611, 623 (6th Cir. 2008) (internal quotation omitted).

2. Reopening Appeal Period

Petitioner first seeks a reopening of the appeal period, asserting that he received ineffective

assistance of counsel because his attorney failed to file a timely notice of appeal. The Court should

reject this claim.

Rule 4(a) of the Federal Rules of Appellate Procedure provides that “[i]n a civil case . . . the

notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the entry

of the judgment or order appealed from.” FED. R. APP. P. 4(a)(1)(A). There is no question that

petitioner failed to comply with Rule 4(a). Rule 4(a) goes on to provide that a district court may

reopen the time to appeal in limited circumstances. Specifically, the rule provides:

The district court may reopen the time to file an appeal for a period of 14

days after the date when its order to reopen is entered, but only if all the following

conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal

Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be

appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered

or within 14 days after the moving party receives notice under Federal Rule of Civil

Procedure 77(d) of the entry, whichever is earlier; and

(C) the court finds that no party would be prejudiced.

FED. R. APP. P. 4(a)(6). Because Rule 4(a)’s time limits are also codified by statute, see 28 U.S.C.

§ 2107(a), they are “mandatory and jurisdictional.” Bowles v. Russell, 432 F.3d 668, 673 (6th Cir.

2005) (citing, inter alia, Browder v. Director, Dep’t of Corrs. of Ill., 434 U.S. 257, 264 (1978)),
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This differs from Rule 4(b), which governs appeals in criminal cases and which is not

jurisdictional. See United States v. Randall, 666 F.3d 1238, 1240-41 (10th Cir. 2011); United States v. Neff,

598 F.3d 320, 323 (7th Cir. 2010).

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aff’d, 551 U.S. 205 (2007).1

 And because Rule 4(a) is jurisdictional, “Rule 60[] does not provide

an avenue to circumvent the provisions of Rule 4 and extend the time for filing a notice of appeal.”

Wesley v. Israel, 525 F. Supp. 646, 647 (E.D. Wis. 1981); see also, Clark v. Lavallie, 204 F.3d 1038,

1040-41 (10th Cir. 2000); Poindexter v. Renico, No. 04-cv-40029, 2010 WL 3168621, at *2 (E.D.

Mich. Aug. 10, 2010) (Murphy, J.). Thus, petitioner is entitled to the relief he seeks only if he meets

the requirements of Rule 4(a)(6). The Court should conclude that he cannot do so.

First, petitioner cannot show that he “did not receive notice under Federal Rule of Civil

Procedure 77(d) of the entry of the judgment.” FED.R.APP. P. 4(a)(6)(A). Rule 77(d) provides that

notice of a judgment or order must be served on a party in accordance with Rule 5(b). See FED. R.

CIV. P. 77(d). Rule 5(b), in turn, provides that where a party is represented by counsel service may

be made on the party’s attorney, see FED.R.CIV. P. 5(b)(1), and may be accomplished by electronic

means, see FED. R. CIV. P. 5(b)(2)(E). Here, petitioner was represented by counsel, who received

electronic notice of the Court’s judgment via the Court’s CM/ECF system. Thus, petitioner cannot

show that he did not receive notice as provided by Rule 77(d). Because plaintiff’s counsel received

notice in accordance with Rules 5(b) and 77(d), he may not invoke Appellate Rule 4(a)(6) to reopen

the time for filing an appeal. See Resendiz v. Dretke, 452 F.3d 356, 362 (5th Cir. 2006); Glover v.

Herbert, No. 01-CV-6366, 2007 WL 570184, at *4-*5 (W.D.N.Y. Jan. 25, 2007).

Second, petitioner did not file his motion to reopen the time for appeal within the earlier of

14 days after receiving notice or 180 days after entry of the judgment. See FED. R. APP. P.

4(a)(6)(B). Even assuming that the electronic notice provided to counsel did not satisfy Rule 77(d),
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the Court’s judgment was entered on June 28, 2011, and petitioner did not file his motion for relief

from judgment until April 26, 2012, 302 days later. As the Advisory Committee notes to Rule 4

make clear, the 180-day time limit “establishes an outer time limit.” FED. R. APP. P. 4(a)(6),

advisory committee note, 1991 amendment. Because petitioner did not file his motion within this

“outer time limit,” the Court may not reopen the appeal period. See Baker v. United States, 670 F.3d

448, 456 (3d Cir. 2012); Bowles, 432 F.3d at 673.

Petitioner’s arguments to the contrary are unavailing. Petitioner contends that counsel was

ineffective in failing to file his notice of appeal in a timely manner and, relying on federal criminal

cases allowing new appeals in such circumstances, argues that a new appeal should likewise be

allowed here. This argument is without merit. First, as noted above, appeal from a criminal case

is governed by Rule 4(b), which unlike Rule 4(a) is not jurisdictional. See Randall, 666 F.3d at

1240-41; Neff, 598 F.3d at 323. Thus, the time limits of Rule 4(b), unlike the time limits of Rule

4(a), are subject to extension for equitable reasons. Cf. FED.R. APP. P. 4(a)(6), advisory committee

note, 2005 amendments (“[A]n appeal cannot be brought more than 180 days after entry, no matter

what the circumstances.”). Although petitioner’s habeas application challenges his underlying state

court conviction in a criminal case, it is well established that a federal habeas corpus proceeding is

a civil action, and thus appeals in habeas corpus actions are governed by Rule 4(a). See Hernandez

v. Thaler, 630 F.3d 420, 424 (5th Cir. 2011); Flint v. Howard, 464 F.2d 1084, 1085-86 (1st Cir.

1972); McCarnes v. Dexter, 549 F. Supp. 2d 1204, 1205 (C.D. Cal. 2008).

Second, unlike in the cases cited by petitioner, here he cannot show that counsel’s failure to

file a notice of appeal deprived him of his constitutional right to the effective assistance of counsel.

It is well established that there is no constitutional right to counsel in a collateral challenge to a
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conviction such as a habeas corpus proceeding, see Lawrence v. Florida, 549 U.S. 327, 336-37

(2007); Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002), and thus any failures of counsel cannot

amount to a denial of the constitutional right to the effective assistance of counsel, see Coleman v.

Thompson, 501 U.S. 722, 752 (1991). Thus, counsel’s failure to timely file a notice of appeal does

not provide a basis for reopening the appeal period. See Walker v. McKee, No. 04-40066-BC, 2010

WL 2231795, at *3 (E.D. Mich. June 2, 2010) (Luddington, J.).

In short, petitioner failed to file a timely notice of appeal, which is a jurisdictional

prerequisite to the prosecution of his appeal. Further, petitioner has failed to satisfy the

requirements for reopening the time for an appeal under Rule 4(a)(6), which provides the exclusive

means for doing so. Accordingly, the Court should deny petitioner’s motion for relief from

judgment under Rule 60(b)(6).

3. Resolution of Ineffective Assistance Claims

Petitioner also seeks relief from judgment on the basis that the Court erred in applying the

deferential standard of review set forth in § 2254(d) to his ineffective assistance of counsel claims,

because those claims were not decided on the merits in the state courts. As explained above, this

portion of petitioner’s Rule 60(b)(6) motion constitutes a prohibited second petition, over which this

Court lacks jurisdiction. Should the Court disagree with this conclusion, the Court should deny

petitioner the relief he seeks on the merits.

Petitioner contends that because the state court denied his request to develop a factual record

and denied his motion for relief from judgment pursuant to MICH. CT. R. 6.508(D), his claim was

not “adjudicated on the merits” in state court and thus the Court erred in applying the deferential

standard of § 2254(d)(1). This argument, however, misconstrues the actions of both the state courts
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and this Court. It is true that in denying petitioner’s applications for leave to appeal in connection

with his motion for relief from judgment, both the Michigan Supreme Court and Michigan Court

of Appeals utilized form orders denying the applications for “failure to meet the burden of

establishing entitlement to relief under MCR 6.508(D).” People v. Garrett, 482 Mich. 987, 755

N.W.2d 652 (2008); People v. Garrett, No. 282182 (Mich. Ct. App. 2008). As the Sixth Circuit has

explained, however, this language constitutes an unexplained order, requiring a federal habeas court

to “look through” the orders to see whether the trial court resolved the matter on the merits. See

Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc). Looking through these orders

to the trial court’s opinion denying petitioner’s motion for relief from judgment, it is clear that the

trial court resolved the motion on the merits. The trial court’s opinion does not invoke the

procedural aspects of Rule 6.508(D), and discusses the merits of petitioner’s underlying claims

related to the newly discovered evidence. See People v. Garrett, No. 03-12254-01 (Wayne County,

Mich., Cir. Ct. Dec. 8, 2006), at 1-2. It is thus clear that the trial court denied the motion on the

merits, and not on a procedural basis apart from the merits. And this being the case, the claims were

“adjudicated on the merits” for purposes of § 2254(d), even if the trial court did not fully discuss

each of the claims, see Harrington v. Richter, 131 S. Ct. 770, 784 (2011), and even if the trial court

failed to hold an evidentiary hearing, see Lambert v. Blodgett, 393 F.3d 943, 966-69 (9th Cir. 2004);

cf. Cullen v. Pinholster, 131 S. Ct. 1388, 1398-99 (2011). Thus, the Court did not err in subjecting

petitioner’s ineffective assistance of counsel claims to the deferential standard of review set forth

in § 2254(d).

Second, even if § 2254(d) were inapplicable, petitioner cannot show that the court erred in

denying habeas relief on his ineffective assistance claims. While my Report set forth the general
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standard of review under § 2254(d) at the outset, my analysis of petitioner’s ineffective assistance

of counsel claims did not rely on petitioner’s failure to show that the state court’s resolution of those

claims was contrary to, or an unreasonable application of, clearly established federal law under §

2254(d). Rather, a review of my analysis shows that with respect to each claim I concluded that

petitioner could not show either deficient performance or prejudice under the standards of Strickland

v. Washington, 466 U.S. 668 (1984). For example, with respect to petitioner’s jury trial waiver

claim, I concluded that counsel was not deficient and that petitioner could not show prejudice. See

Report & Recommendation, at 18. Similarly, with respect to petitioner’s claim based on a waiver

of confrontation, I concluded that there was no deficient performance because petitioner’s right to

confront the witness was never implicated, and that there was no prejudice because there was no

evidence that the witness could provide exculpatory testimony. See id. at 18-19. With respect to

petitioner’s claim based on counsel’s failure to investigate an eyewitness, I concluded that counsel’s

performance was not deficient because the witness’s statement to the police was inculpatory, not

exculpatory, and that there was no prejudice because the trial judge later found the witness’s

affidavit incredible and concluded his testimony would not have altered the outcome of the trial.

See id. at 19-20. Thus, notwithstanding my general discussion of the § 2254(d) standard of review

at the outset of my Report, it is clear that my review of petitioner’s ineffective assistance claims was

essentially de novo: with respect to each claim I concluded that petitioner could not satisfy the

Strickland standard, not that the state court’s application of the Strickland standard was reasonable.

In short, the state court adjudicated petitioner’s ineffective assistance of counsel claims on

the merits, and thus they were subject to the deferential standard of review set forth in § 2254(d).

And, in any event, the Court’s denial of the claims was based not on the standard set forth in § 2254,
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but on petitioner’s failure to show that counsel was ineffective under Strickland. Accordingly,

petitioner is not entitled to Rule 60(b)(6) relief on this basis.

D. Conclusion

In view of the foregoing, the Court should conclude that it lacks jurisdiction over petitioner’s

Rule 60(b)(6) motion to the extent it seeks relief from judgment based on the Court’s analysis of his

ineffective assistance of counsel claim. Alternatively, the Court should conclude that petitioner’s

motion with respect to this claim is without merit. Further, the Court should conclude that petitioner

is not entitled to relief under Rule 60(b)(6) in the form of a reopening of the time in which to file

an appeal. Accordingly, the Court should deny petitioner’s motion for relief from judgment under

Rule 60(b)(6).

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED.

R. CIV. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs.,

932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of

objections which raise some issues but fail to raise others with specificity, will not preserve all the

objections a party might have to this Report and Recommendation. See Willis v. Secretary of Health

& Human Servs., 931 F.2d 390, 401 (6th Cir. 1991). Smith v. Detroit Federation of Teachers Local

231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any

objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the
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opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

Dated: May 4, 2012 s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of this document was sent to parties of record on May 4, 2012

electronically and/or U.S. mail.

s/Michael Williams 

Relief Case Manager for the Honorable

Paul J. Komives