United States District Court, W.D. Kentucky, Louisville Division
DEMETRIUS L. BRADLEY, Petitioner,
AARON SMITH, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
J. Hale, Judge.
the Court are Petitioner Demetrius L. Bradley's pro
se motion for relief from judgment (Docket Number (DN)
28) brought pursuant to Rule 60(b) of the Federal Rules of
Civil Procedure and his motion for appointment of counsel (DN
29). For the reasons stated below, both motions will be
2009, Bradley entered pleas to charges of facilitation to
commit criminal syndication, first-degree trafficking in a
controlled substance, first-degree manslaughter, first-degree
robbery, second-degree burglary, first-degree assault,
tampering with physical evidence, and facilitation to
criminal attempted murder. See Bradley v.
Commonwealth, No. 2012-CA-001065-MR, 2014 WL 1778379, at
*2 (Ky. Ct. App. May 2, 2014). He was sentenced to 30
years' imprisonment. In 2010, Bradley filed a motion for
post-conviction relief, which was denied without an
evidentiary hearing. Id. at *1. The Kentucky Court
of Appeals affirmed, and Bradley did not seek discretionary
review. Id. at *7.
20, 2014, Bradley filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in this Court (DN
1). Therein, Bradley asserted that the trial court abused its
discretion by not holding an evidentiary hearing as to two
claims: (1) that his trial counsel rendered ineffective
assistance by failing to adequately investigate his case; and
(2) that he was prejudiced by a dual-representation conflict
of interest. On December 12, 2014, the Magistrate Judge
entered his Findings of Fact, Conclusions of Law and
Recommendation (Report and Recommendation) (DN 18). Therein,
the Magistrate Judge notified Bradley as follows:
“Within fourteen (14) days after being served a copy of
these proposed Findings and Recommendation, any party who
wishes to object must file and serve written objections or
further appeal is waived. Thomas v. Arn, 474 U.S.
140, 150-51 (1985); 28 U.S.C. § 636(b)(1)(c); Fed. R.
Crim. P. 59(b)(2); Fed.R.Civ.P. 72(b)” (DN 18, p. 28).
Bradley did not file any objections to the Report and
Recommendation. However, he did file a motion for a
certificate of appealability (DN 19) and a motion to alter or
amend judgment (DN 20). Upon review, this Court construed
Bradley's motions as general objections to the Report and
Recommendation, adopted the Magistrate Judge's Report and
Recommendation, denied and dismissed Bradley's habeas
corpus petition with prejudice, and denied a certificate of
appealability (DN 21).
Bradley applied to the Sixth Circuit Court of Appeals for a
certificate of appealability. On June 2, 2016, the Sixth
Circuit denied Bradley's application for a certificate of
appealability (DN 27). Following the denial of a certificate
of appealability by the Sixth Circuit, Bradley filed the
present motions for relief from judgment pursuant to Rule
60(b) (DN 28) and for appointment of counsel (DN 29).
motion for relief from judgment, Bradley states that
“[t]he problem here is the failure to file objections
to caution the right to appeal.” He further states that
“[t]he integrity points to a knowing and intelligent
default on Petitioner this last-resort procedure to ask this
court in the interest of justice to allow a possible remedy
for failure to object in a timely fashion to magistrate
order.” According to Bradley, he “should have
[the] opportunity to objection and present his substantive
claims to a federal court Rule 60(b)(6) catch all provision
is to be liberally construed when substantial justice will
this be extraordinary circumstances or whereas this case the
judgment may work a[n] undue hardship.” Bradley argues
that “[n]o waiver occurs unless the Magistrate
expressly informs Petitioner of the 10 days to object will
bar review of the matter on appeal.” Thereafter,
Bradley raises the same substantive arguments he made in his
§ 2254 petition and in his application for a certificate
of appealability in the Sixth Circuit. First, he argues that
his trial counsel rendered ineffective assistance by failing
to adequately investigate his case. Second, he argues that he
was prejudiced by a dual-representation conflict of interest.
60(b) of the Federal Rules of Civil Procedure provides relief
“from a final judgment, order, or proceeding” in
six instances: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence which by
reasonable 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 opposing party;
(4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; or (6) any other reason
justifying relief. Relief under Rule 60(b) “is an
‘extraordinary remedy that is granted only in
exceptional circumstances.'” McAlpin
v. Lexington 76 Auto Truck Stop, Inc., 229 F.3d 491,
502-03 (6th Cir. 2000) (quoting Dickerson v. Bd. of Educ.
of Ford Heights, 32 F.3d 1114, 1116 (7th Cir. 1994)).
“[T]he party seeking relief under Rule 60(b) bears the
burden of establishing the grounds for such relief by clear
and convincing evidence.” Info-Hold, Inc. v. Sound
Merch., Inc., 538 F.3d 448, 454 (6th Cir. 2008).
“Relief under Rule 60(b), moreover is
‘circumscribed by public policy favoring finality of
judgments and termination of litigation.'” Doe
v. Lexington-Fayette Urban Cty. Gov't, 407 F.3d 755,
760 (6th Cir. 2005) (quoting Waifersong Ltd. v. Classic
Music Vending, 976 F.2d 290, 292 (6th Cir. 1992)).
argument is that he should be allowed to file specific
objections to the Magistrate Judge's Report and
Recommendation. He states that “no waiver occurs unless
the Magistrate expressly informs [him] of the 10 days to
object will bar review of the matter on appeal.” The
Magistrate Judge did specifically and clearly notify Bradley
as follows: “Within fourteen (14) days after being
served a copy of these proposed Findings and Recommendation,
any party who wishes to object must file and serve written
objections or further appeal is waived. Thomas v.
Arn, 474 U.S. 140, 150-51 (1985); 28 U.S.C. §
636(b)(1)(c); Fed. R. Crim. P. 59(b)(2); Fed.R.Civ.P.
72(b)” (DN 18, p. 28). Other than his assertion that he
should be allowed to file specific objections, Bradley mostly
re-states the substantive arguments made in his § 2254
motion and his application for a certificate of appealability
in the Sixth Circuit. Bradley fails to show any exceptional
circumstances necessitating relief under Rule 60(b).
reasons stated above and having carefully considered
Bradley's motion and the arguments therein, the Court
finds that he fails to present any basis for relief under
IT IS ORDERED that Bradley's motion for
relief from judgment (DN 28) is DENIED
IT IS ORDERED that Bradley's motion for
appointment of counsel ...