Filed: Oct. 08, 2014
Latest Update: Oct. 08, 2014
Summary: ORDER TERENCE P. KEMP, Magistrate Judge. Final judgment was entered in this civil case on February 17, 2012. This Court then reviewed a notice of appeal and application to proceed in forma pauperis on appeal in this case, and issued an order allowing plaintiff Jasen Barker to pursue one of the three claims that he sought to raise on appeal. (Doc. 146). On August 10, 2012, the Court of Appeals dismissed Mr. Barker's appeal for want of prosecution. (Doc. 148). In particular, the Court of Appe
Summary: ORDER TERENCE P. KEMP, Magistrate Judge. Final judgment was entered in this civil case on February 17, 2012. This Court then reviewed a notice of appeal and application to proceed in forma pauperis on appeal in this case, and issued an order allowing plaintiff Jasen Barker to pursue one of the three claims that he sought to raise on appeal. (Doc. 146). On August 10, 2012, the Court of Appeals dismissed Mr. Barker's appeal for want of prosecution. (Doc. 148). In particular, the Court of Appea..
More
ORDER
TERENCE P. KEMP, Magistrate Judge.
Final judgment was entered in this civil case on February 17, 2012. This Court then reviewed a notice of appeal and application to proceed in forma pauperis on appeal in this case, and issued an order allowing plaintiff Jasen Barker to pursue one of the three claims that he sought to raise on appeal. (Doc. 146). On August 10, 2012, the Court of Appeals dismissed Mr. Barker's appeal for want of prosecution. (Doc. 148). In particular, the Court of Appeals found that Mr. Barker failed to satisfy his obligation to file a brief by August 2, 2012 and his appeal was, therefore, dismissed. Id.
Nearly two years later, Mr. Barker filed a motion for leave of court to file a delayed notice of appeal. (Doc. 149). The Court denied that motion, finding that any new appeal would be untimely under the Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure and that this Court lacked the legal authority to grant the requested relief. (Doc. 151). It is unclear if Mr. Barker ever got that order; it was returned as undeliverable, and before he filed a change of address on September 23, 2014. The Clerk will therefore be directed to send a copy to him at his new address.
More recently, Mr. Barker has filed both a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(B) (Doc. 155) and motion to vacate or suspend any orders requiring him to any court costs, fines, fees, or restitution (Doc. 156). It appears to the Court that the latter motion relates not to the civil case which he filed in this Court seeking damages under 42 U.S.C §1983 — he paid the filing fee when the case was filed, and there is no order directing the payment of other costs, fines, fees, or restitution — but to his state court criminal case. In any event, since there are no orders of this Court like the ones addressed by his motion, he cannot obtain any relief here.
The Rule 60(b) motion is also somewhat confusing. It refers to a jury verdict dated January 13, 2012, but the jury's verdict in this case was returned on February 16, 2012. See Doc. 136. It also makes reference to events which allegedly occurred during the trial, but the Court has no recollection of those events happening during the trial in this case. Mr. Barker includes a claim based on ineffective assistance of counsel, but there is no Sixth Amendment right to counsel in a civil case; that right applies only to criminal prosecutions. See, e.g., Beasley v. United States, 491 F.2d 687, 692 (6th Cir. 1974)("The Sixth Amendment guarantees that a criminal defendant shall enjoy the right `to have the Assistance of Counsel for his defence'") (emphasis supplied). He does mention a number of issues which (assuming he is referring to the trial held in this case) are the type of matters generally raised on appeal, such as the giving of erroneous jury instructions and a witness allegedly ignoring a subpoena. But a Rule 60(b) motion is not a substitute for an appeal. See Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989)("parties may not use a Rule 60(b) motion as a substitute for an appeal"). To the extent that he attempts to rely on the first three subsections of Rule 60(b), his motion is also untimely because it was filed more than a year after judgment was entered.
The only possible source of relief here would be Rule 60(b)(6), which allows a court to vacate a judgment based on extraordinary circumstances not described in subsections (1) through (5) of Rule 60(b). See Pierce v. United Mine Workers of America Welfare and Retirement Fund for 1950 and 1974, 770 F.2d 449, 451 (6th Cir. 1985)(Rule "60(b)(6) should be used only in exceptional or extraordinary circumstances"). As the Hopper court held, legal errors of the type which Mr. Barker identifies in his motion are addressed by Rule 60(b)(1) and cannot be raised under subsection (6). "A claim of strictly legal error falls in the category of `mistake' under Rule 60(b)(1) and thus is not cognizable under 60(b)(6)...." Hopper, supra. Consequently, Mr. Barker has not alleged any grounds which might entitle him to relief. Since that is so, he is also not entitled to a hearing on his motion; "a movant is not entitled to a hearing on a Rule 60(b) motion as a matter of right. [Internal citation omitted]. This is especially true when it does not appear from the movant's affidavit that a hearing would aid in resolving any factual disputes." Rush v. McLendon, 21 F.3d 428, *5 (6th Cir. March 17, 1994)(unreported).
For these reasons, Plaintiff's motions for relief from judgment and to vacate or suspend payment of court costs, fines, fees and restitution (Docs. 155 and 156) are denied. The Clerk shall mail both a copy of this order and Doc. 151 to the Plaintiff.