UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

GARLAND HALL, 

 

 Petitioner, Civil No. 2:09-cv-12467 

 Hon. Paul D. Borman 

NICK LUDWIK, 

 Respondent. 

 / 

ORDER TRANSFERRING MOTION FOR RELIEF FROM JUDGMENT 

TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH 

CIRCUIT [ECF No. 11] 

In 2009, Garland Hall, a state prisoner convicted of first-degree criminal 

sexual conduct in the Washtenaw Circuit Court, filed a petition for writ of habeas 

corpus under 28 U.S.C. § 2254. The Court denied relief on the merits. (ECF No. 9.) 

Before the Court is Petitioner’s motion for relief from judgment, filed under Fed. R. 

Civ. P. 60(b)(6). The motion will be transferred to the United States Court of Appeals 

for the Sixth Circuit as an application for authorization to file a second or successive 

habeas petition. 

Petitioner’s motion for relief from judgment asserts that his state court 

appointed appellate counsel deprived him of the effective assistance of counsel when 

he: (1) filed a delayed application for leave to appeal in the Michigan Court of 

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Appeals rather than an appeal of right, and (2) failed to file motions to preserve his 

claims for appellate review. 

A threshold question is whether the motion for relief from judgment must be 

construed as a second or successive habeas petition. “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). The “judgment” from which relief 

may appropriately be sought under Rule 60(b) is the Court’s ruling on the prior 

habeas petition itself. That is, a Rule 60(b) motion would be appropriate to “attack 

[] ... some defect in the integrity of the [prior] federal habeas proceedings.” Id. at 

532. A motion that, for instance, “merely asserts that a previous ruling which 

precluded a merits determination was in error—for example, a denial for such 

reasons as failure to exhaust, procedural default, or statute-of-limitations bar”—

should not be construed as a second or successive habeas petition. Id. at 532 n. 4. 

In contrast, “[w]here a Rule 60(b) motion presents a ‘claim,’ such as an attack 

on an earlier decision on the merits or a claim presented for the first time in the Rule 

60(b) motion, it is properly considered a second or successive habeas motion.” 

Hourani v. United States, 239 F. App’x 195, 197 (6th Cir. 2007) (citing Gonzalez, 

545 U.S. at 532). In short, new claims that challenge the underlying conviction or 

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sentence or “the substance of the federal court’s resolution of a [prior habeas] claim 

on the merits” are not appropriately brought under Rule 60(b). Gonzalez, 545 U.S. 

at 532. 

Petitioner’s motion raises new substantive claims of ineffective assistance of 

appellate counsel that directly challenge the validity of his conviction. It does not 

assert a defect in the Court’s adjudication of his habeas petition. The motion is 

therefore the functional equivalent of a second habeas application governed by 28 

U.S.C. § 2244(b). 

Under § 2244, “[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.” § 

2244(b)(3)(A). Because Petitioner’s Rule 60(b) motion is the functional equivalent 

of a successive habeas petition, and because he has not obtained authorization from 

the Sixth Circuit to file such a petition, the Court lacks jurisdiction to consider the 

merits of Petitioner’s new 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.”). 

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The Sixth Circuit has instructed the district courts to transfer to the Sixth 

Circuit any second or successive petition for habeas relief filed in the district court 

without authorization, pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th 

Cir. 1997). 

Accordingly, the Clerk of Court shall TRANSFER this motion to the United 

States Court of Appeals for the Sixth Circuit to be considered as a motion for an 

order authorizing the district court to consider the application. 28 U.S.C. §§ 2255(h), 

2244(b)(3)(A). 

SO ORDERED. 

 

s/Paul D. Borman 

 Hon. Paul D. Borman 

Dated: August 9, 2021 United States District Judge 

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