UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

REGINALD JEROME BROWN, 

 Petitioner, 

 Case Number: 2:09-cv-13520 

v. Honorable Denise Page Hood 

GREGORY MCQUIGGIN, 

 Respondent. 

_____________________________/

OPINION AND ORDER TRANSFERRING PETITIONER’S MOTION 

FOR RELIEF FROM JUDGMENT TO THE COURT OF APPEALS 

AS A SECOND OR SUCCESSIVE HABEAS CORPUS PETITION

I. Introduction

 Petitioner Reginald Jerome Brown, a state prisoner in Kincheloe, Michigan, 

commenced this action in 2009 by filing a pro se habeas corpus petition under 28 

U.S.C. § 2254. The habeas petition challenged Petitioner’s 1988 state convictions for 

second-degree murder, Mich. Comp. Laws § 750.317, assault with intent to commit 

murder, Mich. Comp. Laws § 750.83, and possession of a firearm during the 

commission of a felony, Mich. Comp. Laws § 750.227b. Petitioner is serving a 

paroleable life sentence for the murder conviction, a concurrent sentence of twenty to 

forty years in prison for the assault conviction, and a consecutive sentence of two years 

in prison for the felony-firearm conviction.

 In his habeas petition, Petitioner alleged as grounds for relief that the trial court 

(1) improperly instructed the jury on the element of intent and (2) failed to comply with 

essential procedural safeguards when sentencing him. On August 19, 2011, the Court 

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denied the petition on the merits and declined to issue a certificate of appealability. On 

April 4, 2013, the United States Court of Appeals for the Sixth Circuit likewise denied a 

certificate of appealability. See Brown v. McQuiggin, No. 12-1994 (6th Cir. Apr. 4, 

2013). Now pending before the Court is Petitioner’s motion for relief from judgment 

under Federal Rule of Civil Procedure 60(b)(4).

II. Analysis

 Federal Rule of Civil Procedure 60(b) permits a federal court to relieve a party 

from a final judgment under a limited set of circumstances and for “any other reason 

that justifies relief.” Fed. R. Civ. P. 60(b)(6). Petitioner seeks relief from judgment 

under Rule 60(b)(4), which authorizes courts to grant relief from judgment when the 

judgment is void. Petitioner contends that this Court’s judgment is void because the 

state district court failed to appoint counsel for him at his initial arraignment in state 

court on October 15, 1987. Petitioner argues that, because his Sixth Amendment right 

to counsel was violated, the state court lacked jurisdiction to proceed with his case. He 

seeks immediate release from custody. 

 In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court stated that,

“[i]n some instances, a Rule 60(b) motion will contain one or more ‘claims,’ ” and that

“[a] habeas petitioner’s filing that seeks vindication of such a claim is, if not in substance 

a ‘habeas corpus application,’ at least similar enough that failing to subject it to the 

same requirements would be ‘inconsistent with’ the statute.” Id. at 530-31. “Using Rule 

60(b) to present new claims for relief from a state court’s judgment of conviction – even 

claims couched in the language of a true Rule 60(b) motion – circumvents [the 

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statutory] requirement that a new claim be dismissed unless it relies on either a new 

rule of constitutional law or newly discovered facts. § 2244(b)(2).” Id. at 531.1

Consequently, courts must determine whether a Rule 60(b) motion asserts a new claim. 

 A motion that attacks “some defect in the integrity of the federal habeas 

proceedings” does not advance a “claim.” Id. at 532. But, contrary to what Petitioner 

alleges, he is not attacking some defect in the habeas proceeding. Instead, he is 

raising a new ground for relief based on what occurred in state court. As such, his 

motion advances a “claim” and qualifies as a second or successive habeas petition. Id.;

see also Loggins v. Hannigan, 461 F. App’x 712, 713 (10th Cir. 2012) (stating that “[a] 

prisoner’s post-judgment filing (however entitled) should be treated like a second or 

successive § 2254 application . . . if it asserts or reasserts claims of error in the 

 

1 Section 2244(b)(2) reads:

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-- 

 (A) the applicant shows 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 

(B)(i) the factual predicate for the claim could not have been 

discovered previously through the exercise of due diligence; 

and

(ii) the facts underlying the claim, if proven and viewed in 

light of the evidence as a whole, 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).

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prisoner’s conviction”); United States v. Estrada, 162 F. App’x 359, 360 (5th Cir. 2006) 

(concluding that a federal prisoner’s challenge to the constitutionality of his federal 

sentence under either Rule 60(b)(2) or 60(b)(4) was properly classified as an attempt to 

file a second or successive motion to vacate sentence under 28 U.S.C. § 2255).

 A petitioner who wishes to file a “second or successive” habeas corpus petition 

must ask “the appropriate court of appeals for an order authorizing the district court to 

consider the application.” 28 U.S.C. § 2244(b)(3)(A). When a habeas petitioner files a 

second or successive petition for habeas corpus relief in the district court without prior 

authorization from the Court of Appeals, the district court must transfer the document to 

the Court of Appeals pursuant to 28 U.S.C. § 1631.2 In re Sims, 111 F.3d 45, 47 (6th 

Cir. 1997).

 Petitioner has not acquired permission from the Court of Appeals to file a second 

or successive habeas petition. Accordingly, the Court orders the Clerk of the Court to 

transfer Petitioner’s Motion for Relief from Judgment to the Sixth Circuit Court of 

Appeals for a determination of whether this Court may consider Petitioner’s underlying 

claim about the alleged lack of counsel at his initial arraignment. 

 s/Denise P. Hood 

Dated: January 7, 2016 HON. DENISE PAGE HOOD 

 UNITED STATES DISTRICT JUDGE

 

2 This statute reads:

Whenever a civil action is filed in a court . . . and that court finds that there 

is a want of jurisdiction, the court shall, if it is in the interest of justice, 

transfer such action . . . to any other such court in which the action . . . 

could have been brought at the time it was filed . . . , and the action . . . 

shall proceed as if it had been filed in . . . the court to which it is 

transferred on the date upon which it was actually filed in . . . the court 

from which it was transferred.

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