UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

ALPHONSO CLARK, 

 Petitioner, Case No. 09-cv-13088 

v Honorable Thomas L. Ludington 

NICK J. LUDWICK, 

 

 Respondent. 

__________________________________________/ 

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT, 

DENYING CERTIFICATE OF APPEALABILITY AND DENYING 

LEAVE TO APPEAL IN FORMA PAUPERIS 

 Petitioner, Alphonso Clark, is serving a controlling sentence of life imprisonment, as well 

as lesser terms for his Wayne Circuit Court jury trial convictions of first-degree murder under 

MCL § 750.316, possession of a firearm by a felon under MCL § 750.224f, and possessing a 

firearm during the commission of a felony under MCL § 750.227b. Clark’s convictions arose out 

of the shooting death of Gregory Marshall on June 17, 2005, outside of his home in Inkster, 

Michigan. 

I. 

On August 5, 2009 Clark filed a petition for habeas corpus, raising the following eight 

claims: (1) insufficient evidence was presented at trial to sustain his convictions; (2) the 

prosecutor committed misconduct during his questioning of witnesses; (3) the trial court 

erroneously allowed admission of a 9-1-1 recording at trial; (4) the trial court improperly 

instructed the jury; (5) the trial court erroneously failed to declare a mistrial after the jury 

indicated it was deadlocked; (6) Petitioner was denied the effective assistance of counsel at trial; 

(7) police officers intimidated two defense witnesses prior to trial; and (8) the prosecutor 

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committed additional acts of misconduct. ECF No. 1. On February 5, 2010 the parties stipulated 

to a stay to allow Petitioner the opportunity to exhaust his new claims in Michigan state court. 

ECF No. 6. Consequently, on March 1, 2010 the Court stayed the case pending exhaustion of 

Petitioner’s claims in state court. ECF No. 7. 

The stay was lifted on April 15, 2014. The Court then denied Clark’s petition on January 

4, 2016, finding all of Clark’s claims either without merit or barred by his state procedural 

default ECF No. 23. Because Clark had not made a substantial showing of the denial of a 

constitutional right, he was denied a certificate of appealability. Id. Clark was also denied leave 

to proceed in forma pauperis on appeal, as the Court determined that any any appeal would be 

frivolous. See Fed. R. App. P. 24(a). Judgment was also entered on January 4, 2016. ECF No. 

24. 

 Clark did not attempt to appeal this Court’s order or judgment within the 60 days allowed 

under Federal Rule of Appellate Procedure 4(a)(1)(B). Instead, on March 21, 2016 Clark filed a 

motion for relief from judgement under Federal Rule of Civil Procedure 60(b). Clark concedes 

that he has lost the ability file a notice of appeal, and concedes that he cannot move for an 

extension of time to file an appeal. He therefore claims that he “must pin his request” on Rule 

60(b), and argues that he is entitled to relief under Rule 60(b)(1) and 60(b)(6). Clark ultimately 

seeks a ruling that will permit him an appeal outside of the time constraints of Federal Rule of 

Civil Procedure 4(a)(5). His motion will be denied. 

II. 

 Federal Rule of Appellate Procedure 4(a)(1)(B) provides that “the notice of appeal may 

be filed by any party within 60 days after entry of the judgment or order appealed from if one of 

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the parties . . . the United States.” This time limit is mandatory and jurisdictional. Browder v. 

Director, Department of Correction of Illinois, 434 U.S. 257, 264 (1978). 

 Rule 60(b) allows the Court to relieve a party from a final judgment or order for several 

reasons, including, among others “(1) mistake, inadvertence, surprise, or excusable neglect” and 

“(6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Rule 60(b)(6) is only 

applicable if there are “exceptional and extraordinary circumstances.” Fuller v. Quire, 916 F.2d 

358, 360 (6th Cir. 1990). Parties cannot employ Rule 60(b) “as a substitute for an appeal,...or as 

a technique to avoid the consequences of decisions deliberately made yet later revealed to be 

unwise.” Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir.1989) 

(internal citations omitted). 

A. 

 Clark first argues that Rule 60(b)(1) is applicable. He argues that his previous attorney 

mistakenly failed to file a notice of appeal on his behalf, since he did not check on the status of 

the case until March 10, 2016. Clark’s attorney have provided an affidavit stating that the failure 

to appeal was “entirely my fault” and that he was “negligent in not keeping abreast of the case”. 

 Rule 60(b)(1) is designed to provide relief only where “the party has made an excusable 

litigation mistake or an attorney in the litigation has acted without authority; or ... when the judge 

has made a substantive mistake of law or fact in the final judgment or order.” Cacevic v. City of 

Hazel Park, 226 F.3d 483, 490 (6th Cir.2000). Under Rule 60(b)(1), a party must first 

demonstrate excusable neglect before other factors such as whether a defendant has a meritorious 

defense and prejudice to the plaintiff will be considered. See United States v. Reyes, 307 F.3d 

451, 456 (6th Cir. 2002). The Sixth Circuit has held that a determination of excusable neglect 

“does not turn solely on whether the client has done all that he reasonably could do to ensure 

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compliance with a deadline; the performance of the client’s attorney must also be taken into 

account.” Id. (internal quotation and citation omitted). The Supreme Court has expressly 

rejected the suggestion that it is inappropriate to penalize clients for the omissions of their 

attorneys. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 396–97, 

(1993). Instead, the Supreme Court has held that clients must “be held accountable for the acts 

and omissions of their chosen counsel.” Id. 

The Sixth Circuit has specifically held that neither a strategic miscalculation by counsel, 

nor misinterpretation of the law constitute a mistake under Rule 60(b)(1). See McCurry v. 

Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586, 592–94 (6th Cir.2002). Neither is an 

attorney’s mistake of law a proper basis for Rule 60(b)(1) relief. See FHC Equities, L.L.C. v. 

MBL Life Assur. Corp., 188 F.3d 678, 685 (6th Cir.1999). Clark’s attorney’s failure to remain 

informed of the proceedings in this matter is not excusable neglect. Under Supreme Court 

precedent, Clark must be held accountable for this inexcusable neglect of his former attorney. 

Accordingly, Clark may not obtain relief under Rule 60(b)(1). 

B. 

 Clark next argues that he is entitled to relief under Rule 60(b)(6). “Rule 60(b)(6) should 

apply only in exceptional or extraordinary circumstances which are not addressed by the first 

five numbered clauses of the Rule”” Olle v. The Henry & Wright Corp., 910 F.2d 357, 365 (6th 

Cir.1990), and “where principles of equity mandate relief.” Blue Diamond Coal Co. v. Tr. of the 

UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.2001) (emphasis added). Here, 

Clark cannot show any exceptional or extraordinary circumstances that warrant relief. See 

McCurry ex rel. Turner v. Advesntist Health System/Sunbelt Inc., 298 F.3d 586, 596 (6th Cir. 

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2002) (finding “straightforward claims of attorney error and strategic miscalculation[ ] do not 

satisfy this rigorous standard”). 

Tanner v. Yukins, 776 F.3d 434 (6th Cir. 2015), cited by Clark, does not require a 

different outcome. In Tanner, the pro se petitioner was unable to timely file a notice of appeal 

because her prison unit was on lockdown and the prison guards wrongfully prevented her from 

filing her notice of appeal. Id. at 437. The petitioner then instituted an action against the guards 

who had prevented her from timely filing her appeal under 42 U.S.C. § 1983. A jury found in 

favor of the petitioner, and awarded her $20,000 in compensatory damages and $7,000 in 

punitive damages. Id. 

 After obtaining judgment in her § 1983 action, the petitioner filed a motion for relief 

from judgment in her habeas action under 60(b)(6). The district court denied the action for lack 

of jurisdiction, noting that the time limit in Rule 4(a)(1) was mandatory and jurisdictional, and 

finding that Rule 60(b) could not be used to circumvent Rule 4’s time requirements. Id. The 

Sixth Circuit overturned this decision, finding that the district court had authority to vacate and 

reinstate its denial of the petitioner’s habeas petition under Rule 60(b). Tanner, 776 F.3d at 438. 

The Sixth Circuit found that the Court has inherent and discretionary power “to set aside a 

judgment whose enforcement would work inequity.” Id. The Court based its decision on the fact 

that the petitioner had been denied her “fundamental constitutional right of access to the courts.” 

Id. at 438-39. To hold otherwise, the Court found, would require federal courts “to acquiesce in 

the unconstitutional conduct of prison guards who delay an inmate’s ability to file an appeal until 

it is too late to meet the Rule 4 deadlines.” Id. 

 No such concerns are at issue in the present case. Here, Petitioner’s attorney voluntarily 

agreed to act as counsel for Clark, and Clark accepted that representation. ECF No. 10. 

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Petitioner’s attorney’s failure to timely appeal is not an excusable mistake, and Clark’s 60(b) 

motion is simply an impermissible attempt to circumvent the Rule(4)(a) time requirements. 

Furthermore, there is no reason for equity in granting Clark 60(b)(6) relief because Clark was 

denied a certificate of appealability in this Court’s previous order. ECF No. 23. 

III. 

 Accordingly, it is ORDERED, that Petitioner Clark’s motion for relief from judgment, 

ECF No. 26, is DENIED. 

 It is further ORDERED, that a certificate of appealability is DENIED. 

It is further ORDERED, that permission to proceed on appeal in forma pauperis is 

DENIED. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: April 5, 2016 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on April 5, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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