CHRISTOPHER RUSSELL v. WARDEN NORTH CENTRAL CORRECTIONAL INSTITUTION (2017)

ORDER

Christopher M. Russell, an Ohio prisoner proceeding pro se, appeals the district court's denial of his motion, filed pursuant to Federal Rule of Civil Procedure 60(b), seeking relief from the order dismissing his 28 U.S.C. § 2254 habeas corpus petition as time-barred. Russell moves this court for a certificate of appealability (“COA”) and to proceed in forma pauperis.

In 2011, a jury convicted Russell of five counts of rape of a child less than thirteen years old, two counts of gross sexual imposition, one count of pandering obscenity, and two counts of sexual battery. He was sentenced to consecutive prison terms totaling seventy-five years. The Ohio Court of Appeals affirmed his convictions on September 21, 2012. State v. Russell, No. 2011-CA-10, 2012 WL 4328657 (Ohio Ct. App. Sept. 21, 2012). Russell did not file an appeal in the Ohio Supreme Court. Russell unsuccessfully sought post-conviction relief in the state courts.

On April 30, 2015, Russell filed a § 2254 petition in the district court, asserting: (1) prosecutorial misconduct; (2) improper admission of coerced incriminating statements; (3) ineffective assistance of trial and appellate counsel; and (4) insufficiency of the evidence supporting his convictions and excessiveness in his sentence. The respondent moved to dismiss the petition as barred by the one-year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act. In a second supplemental report and recommendation, the magistrate judge agreed with the respondent, rejecting Russell's claims of equitable tolling and actual innocence. The district court adopted the magistrate judge's second supplemental report and recommendation, dismissed the petition, and denied Russell a COA. In its order, the district court noted that Russell had not filed any objections to the magistrate judge's second supplemental report and recommendation.

Two days after the district court entered its order dismissing Russell's § 2254 petition, Russell's objections to the magistrate judge's second supplemental report and recommendation were docketed. Although the magistrate judge initially struck the objections as untimely, Russell submitted evidence showing that his objections were timely filed. The magistrate judge then vacated the notation striking the objections and construed them as a Federal Rule of Civil Procedure 59(e) motion for relief from judgment. The magistrate judge recommended denying Russell relief from judgment because he did not show any manifest error in the magistrate judge's second supplemental report and recommendation to dismiss the petition as time-barred.

On March 25, 2016, over Russell's objections, the district court adopted the magistrate judge's report and recommendation. Further, the district court construed Russell's objections to that report and recommendation as a Rule 59(e) motion for relief from judgment, denied the motion as so construed, and denied Russell a COA. The district court found Russell's construed Rule 59(e) motion to raise a meritless claim that the magistrate judge was biased against him, an unfounded request for an evidentiary hearing, and a meritless challenge to the magistrate judge's rejection of Russell's actual-innocence claim. On April 25, 2016, Russell appealed. This court denied Russell's application for a COA. Russell v. Turner, No. 16-3415 (6th Cir. Oct. 28, 2016) (order). Russell's petition for an en banc rehearing was also denied. Id. (Feb. 8, 2017) (order).

On June 29, 2016, while his appeal was pending in this court, Russell filed a motion for relief from judgment, pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure. In it, he argued that the magistrate judge erred by relying on this court's decision in Hall v. Warden, 662 F.3d 745 (6th Cir. 2011), to reject his claim that he was entitled to equitable tolling due to limited access to the prison law library. The magistrate judge recommended that Russell's motion be denied, explaining that, “[e]ven if the [c]ourt were to accept Russell's argument that inadequate access to the law library could be an extraordinary circumstance preventing a filing, Russell would still be faced with the [c]ourt's determination that he was not diligent in pursuing his rights.” The district court recommitted the matter to the magistrate judge for consideration of Russell's objections to the report and recommendation. In his objections, Russell reiterated his arguments concerning his limited access to the law library. He also asserted that his attorney never informed him of the time limits for filing a federal habeas petition. In a supplemental report and recommendation, the magistrate judge again recommended that Russell's Rule 60(b) motion be denied. Over Russell's objections, the district court adopted the magistrate judge's report and recommendation and denied Russell's Rule 60(b) motion. The court declined to issue a COA. Russell now appeals and seeks a COA from this court.

A prisoner seeking to appeal the denial of a Rule 60(b) motion in a habeas corpus proceeding must first obtain a COA. Johnson v. Bell, 605 F.3d 333, 336 (6th Cir. 2010). To obtain a COA, a petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim,” a petitioner can satisfy § 2253(c)(2) by establishing that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

No reasonable jurist could disagree with the district court's denial of Russell's Rule 60(b) motion. “The filing of a [timely] notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam). Thus, “[a]fter an appeal of a trial court's final judgment has been perfected by the filing of a notice of appeal, the trial court no longer has jurisdiction to grant a Rule 60(b) motion.” Pickens v. Howes, 549 F.3d 377, 383 (6th Cir. 2008) (citation omitted). As the magistrate judge suggested, if presented with a Rule 60(b) motion after an appeal has been perfected, a district court may “aid the appellate process” by indicating that it may grant the motion, but it cannot independently grant the motion. Id. (quoting First Nat'l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343, 345 n.1 (6th Cir. 1976)). Here, the district court could have simply denied Russell's motion for lack of jurisdiction because he filed it after perfecting his appeal to this court. But instead, the court denied the motion on the merits. Regardless of the basis for the district court's ruling, because it lacked jurisdiction to consider the motion, no reasonable jurist could debate the ultimate denial of relief.

Accordingly, Russell's application for a COA is DENIED and his motion to proceed in forma pauperis is DENIED as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk