United States District Court, W.D. Tennessee, Western Division
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
ANDERSON CHIEF UNITED STATES DISTRICT JUDGE
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.
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,
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. (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
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.)
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).
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).
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.)
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).
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.
60(b) of the Federal Rules of Civil Procedure provides as
On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or