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Haymon v. Lindamood

United States District Court, W.D. Tennessee, Western Division

March 12, 2018

RAYMON HAYMON, Petitioner,
v.
CHERRY LINDAMOOD, Respondent.

          ORDER DENYING REQUEST FOR RELIEF FROM JUDGMENT, TRANSFERRING “MOTION FOR ACTUAL INNOCENCE” TO COURT OF APPEALS AS A SECOND OR SUCCESSIVE PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner Raymon Haymon's “Motion for Relief from Judgment Pursuant to Federal Rules of Civil Procedures 60(b)(4) or in the Alternative 60(b)(6) and Motion for Actual Innocence.” (ECF No. 27.) For the reasons that follow, the request for relief from judgment is DENIED and the “motion” for actual innocence is TRANSFERRED to the Sixth Circuit as a second or successive petition.[1]

         BACKGROUND

         On September 27, 2007, Petitioner Filed a pro se petition pursuant to 28 U.S.C. § 2254 (“Petition”). (ECF No. 1.) United States District Judge J. Daniel Breen subsequently issued an order directing Respondent to file the state court record and a response to the Petition. (ECF No. 3.) Respondent filed a motion to dismiss and the state court record on November 21, 2007, and December 3, 2007, respectively. (ECF Nos. 12 and 14). Petitioner did not respond to the motion to dismiss. On October 22, 2008, the Court issued an order granting Respondent's motion and denying a certificate of appealability. (ECF No. 16.) Judgment was entered on October 23, 2008. (ECF No. 17.) The Sixth Circuit Court of Appeals denied a certificate of appealability in February 2010. Haymon v. Easterling, No. 09-5059 (6th Cir. Feb. 26, 2010).

         A year later, on March 1, 2011, Haymon filed a motion under Rule 60(b)(3) and Rule 60(d) for relief from judgment. (ECF No. 20.) See Fed. R. Civ. P. 60(b)(3) and (d). He asserted that he did not receive a copy of Respondent's motion to dismiss and that Judge Breen did not order him to respond to the motion.[2] (ECF No. 20 at 3.) He further alleged that he first learned that a motion to dismiss had been filed when he received the Court's dismissal order. (Id. at 3-4.)

         The Court denied the Rule 60 motion. (ECF No. 22.) It concluded that relief under Rule 60(b)(3) was not available because Petitioner did not file his motion within one-year after entry of judgment. (Id. at 4.) The Court also held that he had failed to show a fraud upon the Court which would warrant setting aside the judgment under Rule 60(d). (Id. at 4-6.) The Court denied a certificate of appealability and leave to proceed on appeal in forma pauperis. (Id. at 7-8.)

         Haymon filed a notice of appeal and the Sixth Circuit denied a certificate of appealability. Haymon v. Easterling, No. 11-6329 (6th Cir. May 17, 2012). His petition for rehearing was denied in August 2012. Id. (6th Cir. Aug. 3, 2012).

         Nearly five years later, on May 8, 2017, Haymon filed the now-pending request for relief from judgment. (ECF No. 27.) The request is combined in the same document with a twenty-five-page discussion titled “Actual Innocence Motion” (hereinafter “Part I” and “Part II, ” respectively).

         DISCUSSION

         In Part I of his motion, Petitioner argues that he is entitled to relief from judgment under subparts (4) and (6) of Rule 60(b) because of an alleged procedural defect leading to dismissal of the Petition. (Id.) Specifically, he insists that he did not receive a copy of the state court record and that the Court failed to order him to respond to the motion. (Id. at 3.). He contends that this alleged “depriv[ation] of notice and opportunity to be heard” renders the judgment void for purposes of Rule 60(b)(4) and represents an “extraordinary circumstance” warranting relief under Rule 60(b)(6). (Id.) In Part II, Haymon asserts new attorney ineffective assistance and due process claims. (Id. at 17-42.) He also asserts “that a constitutional violation has probably resulted in the conviction of one who is ‘Actually Innocent' and a fundamental miscarriage of justice will occur if Movant is not allowed to properly adjudicate his Habeas Corpus Petition.” (Id. at 17.)[3]

         As an initial matter, the Court determines that Part II of the motion constitutes a second or successive petition because it advances new claims for habeas corpus relief. See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (holding a Rule 60(b) motion is to be treated as a successive habeas petition if it “seeks to add a new ground of relief” or “attacks the federal court's previous resolution of a claim on the merits.”) (emphasis in original.) “Before a second or successive application . . . 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). Haymon has not yet obtained authorization from the Sixth Circuit to file his new claims. Part II of the motion is therefore TRANSFERRED to the United States Court of Appeals for the Sixth Circuit. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (holding that districts courts should transfer to the appellate court second or successive petitions filed without authorization from the Sixth Circuit).

         Part I, wherein Petitioner argues that he was not given notice and opportunity to be heard on the motion to dismiss, is not a second or successive petition and is therefore properly before this Court for resolution.

         Rule 60(b) of the Federal Rules of Civil Procedure provides as follows:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or ...

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