Opinion
CASE NO. 2:99-cv-459.
March 4, 2008
OPINION AND ORDER
On June 9, 2000, the instant habeas corpus action was dismissed without prejudice at petitioner's request so that he could exhaust state court remedies as to his claims by filing a motion for delayed appeal with the Ohio Supreme Court. See Petitioner's Exhibits 6, 9; Doc. No. 23. On February 13, 2002, petitioner filed a new habeas corpus petition. Avery v. Wilson, Case No. 2:02-cv-139 (S.D. Ohio). However, on January 13, 2003, that action was dismissed as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d). Id. This matter now is before the Court on petitioner's February 15, 2008, motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(a), (b). Doc. No. 24. Respondent opposes petitioner's motion. Doc. No. 25. For the reasons that follow, petitioner's motion, Doc. No. 24, is DENIED.
The circumstances surrounding the dismissal of petitioner's first action, and his request for relief from that dismissal, do not fall within the ambit of Rule 60(a), which provides:
Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.
Federal Rule of Civil Procedure 60(b) provides:
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
Federal Rule of Civil Procedure 60(b).
Petitioner requests relief from judgment alleging that, in voluntarily dismissing this action, he relied on the advice and alleged misrepresentations of counsel. Petitioner represents that he subsequently filed charges against his attorney with the Ohio Disciplinary Counsel. Motion for Relief from Judgment, at 3.
However, petitioner's motion is untimely. Under Rule 60(b)(1)-(3), the motion must be filed within one year of the judgment challenged. See Censke v. Calhoun County Jail, 2007 WL 2076448 (W.D. Michigan July 17, 2007), citing Kalamazoo River Study Group v. Rockwell Int'l Corp., 355 F.3d 574, 588-589 (6th Cir. 2004) and McDowell v. Dynamics Corp. of America, 931 F.2d 380, 383 (6th Cir. 1991).
In addition, Fed.R.Civ.P. 6(b) provides the court with no discretion to extend the one-year time period contained in Rule 60(b). Smith v. Secretary of Health and Human Services, 776 F.2d 1330, 1332-1333 (6th Cir. 1985).Id. (footnote omitted). In this action, the one year period for filing a motion for relief from judgment pursuant to Rule 60(b)(1)-(3) ended on June 9, 2000. Petitioner waited until February 15, 2008, i.e., more than seven and one half years later, to file his motion. Further, even a motion under Rule 60(b)(6), must be filed within a "reasonable time,"
which . . . depends on the facts of a given case including the length and circumstances of the delay, the prejudice to the opposing party by reason of the delay, and the circumstances compelling equitable relief.Olle v. Henry Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990). See also Smith v. Secretary of Health and Human Services, 776 F.2d 1330, 1333 (6th Cir. 1985) (The reasonable time standard depends on the factual circumstances of each case.) Petitioner has offered no explanation for his lengthy delay in filing this motion.
Finally, even assuming that petitioner's motion is properly considered under Rule 60(b)(6), he has failed to offer any reason warranting relief.
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." Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989) (citing Pierce v. United Mine Workers, 770 F.2d 449, 451 (6th Cir. 1985), cert. denied, 474 U.S. 1104, 106 S.Ct. 890, 88 L.Ed.2d 925 (1986)); see also Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 212, 95 L.Ed. 207 (1950); United States v. Karahalias, 205 F.2d 331, 333 (2d Cir. 1953) (holding that Rule 60(b)(6) may be used to grant relief in case of extreme and undue hardship). Courts . . . must apply subsection (b)(6) only "as a means to achieve substantial justice when 'something more' than one of the grounds contained in Rule 60(b)'s first five clauses is present." Hopper, 867 F.2d at 294; see also Emergency Beacon Corp., 666 F.2d at 758.
(citations omitted). Relief under Rule 60(b)(6) encompasses "unusual and extreme situations where principles of equity mandate relief." Id. (emphasis in the original). Such are not the circumstances here.
For all the foregoing reasons, petitioner's motion for relief from judgment, Doc. No. 24, is DENIED.