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commenting that victim's clothing properly was admitted to show the manner and means of the assault and ensuing death
Summary of this case from United States v. Con-UiOpinion
Case Number: 98-72656
August 1, 2000
OPINION INDICATING THAT THE COURT IS INCLINED TO GRANT PETITIONER'S MOTION FOR RELIEF FROM JUDGMENT
I.
Petitioner Damion Lavoial Todd (Petitioner), through counsel, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is incarcerated in violation of his constitutional rights. On April 24, 2000, the Court issued an Opinion and Order Denying Petition for Writ of Habeas Corpus (Opinion and Order). A separate Judgment was issued the same day. On June 16, 2000, 53 days after the Court's Opinion and Judgment, Petitioner, through counsel, filed a notice of appeal with the Sixth Circuit Court of Appeals. Petitioner also filed a motion for a certificate of appealability with the Court. On July 18, 2000, the Court entered an Opinion and Order Granting in Part and Denying in Part Certificate of Appealability. On July 21, 2000, the Sixth Circuit issued an order requiring Petitioner show cause in writing within 21 days why the appeal should not be dismissed for lack of jurisdiction because the time limit for filing a notice of appeal in a matter under 28 U.S.C. § 2254 is 30 days. See Fed.R.App.P. 4(a)(1)(A).
Before the Court is Petitioner's motion for relief from judgment under Fed.R.Civ. p. 60(b), filed June 24, 2000, requesting that the Court re-enter the judgment at a later date in order to make Petitioner's untimely appeal timely. As explained more fully below, the Court must first issue a statement stating whether it is inclined to grant the motion. This opinion provides such a statement.
II.
In Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993), the Sixth Circuit considered whether a "district court may grant relief from judgment under Fed.R.Civ.P. 60(b) for the sole purpose of re-entering the same judgment at a later date, thereby making an untimely appeal timely." The Sixth Circuit held that a district court does have jurisdiction to consider such a motion and set forth the appropriate procedure where, as here, the appeal is still pending in the court of appeals. The Sixth Circuit stated:
If the untimely appeal is still pending in this court, the district court should consider the merits of the Rule 60(b) motion and issue an opinion indicating whether it is inclined to grant the motion, but it should not issue a final ruling on the motion until after this court has dismissed the untimely appeal. If the district court indicates its inclination to grant relief from judgment, the movant should then request this court to dismiss the pending, untimely appeal so the district court may sustain the motion for relief from judgment. 11 Wright Miller, FEDERAL PRACTICE AND PROCEDURE, § 2873 (1973 Supp. 1992).987 F.2d at 395. The Sixth Circuit also set forth the requirements for obtaining such relief, as follows:
As a prerequisite to relief under Rule 60(b), a party must establish that the facts of its case are within one of the enumerated reasons contained in Rule 60(b) that warrant relief from judgment. In re Salem Mortgage Co., 791 F.2d 456, 459 (6th Cir. 1986). We think the test first articulated by the Ninth Circuit in Rodgers, 722 F.2d at 459-60, concerning the propriety of extending the time for appeal through Rule 60(b) provides the fairest results. Thus, in addition to finding that the lack of notice resulted from one of the Rule's enumerated reasons, the district court must also find a lack of prejudice to the respondent, prompt filing of the motion after actual notice, and due diligence, or sufficient reason for the lack thereof, by counsel in attempting to comply with the time constraints of Fed.R.App.P. 4(a). See id. at 460. The district court should carefully list each of these findings in its order granting the motion under Rule 60(b), as the district did in the present case.ld.at 396.
Rule 60(b) provides that the district court may relieve a party from a final judgment, order, or proceeding for any of six enumerated 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 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."
Here, based on Petitioner's counsel's affidavit, Petitioner has established the first enumerated ground in rule 60(b). Petitioner's counsel mistakenly relied upon the time limits for filing a notice of appeal for matters where the government is a party, as in case under 28 U.S.C. § 22 55, which is 60 days. See Fed.R.App.P. 4(a)(1)(B) . As this is a case under 28 U.S.C. § 22 54, the time limit is 30 days.See Fed.R.App.P. 4(a)(1)(A) . Counsel's mistake was excusable. Respondent will also not be prejudiced by granting the motion, as granting the motion will only result in a minor delay in the appellate process. Moreover, Petitioner's counsel acted promptly and with all due diligence, having filed the instant motion the first business day after receiving the Sixth Circuit's order. Finally, the fact that the Court granted the certificate of appealability in part also provides sufficient reason for granting the motion.
III.
Thus, upon dismissal of Petitioner's appeal by the Sixth Circuit, the Court is inclined to grant Petitioner's motion for relief from judgment.