Henderson v. Bell
ORDER denying 31 Motion for Reconsideration. Signed by District Judge Thomas L. Ludington. (SGam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil No. 1:07-CV-14712
Honorable Thomas L. Ludington
ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION
On June 22, 2011, the Court issued an opinion and order denying Petitioner’s application for
a writ of habeas corpus, declining to issue a certificate of appealability, and denying Petitioner
permission to appeal in forma pauperis based on the Court’s conclusion that an appeal would be
frivolous. On July 12, 2011, Petitioner filed a motion for reconsideration. See E.D. Mich. L.R.
Generally, a motion for reconsideration will not be granted unless the Petitioner
demonstrates “a palpable defect by which the court and the parties” were misled and that “correcting
the defect will result in a different disposition of the case.” E.D. Mich. L.R. 7.1(h)(3).
Petitioner first contends that the Court erred when it concluded that certain claims were
procedurally defaulted because they were not presented for one complete round of appellate review
in state court. After Petitioner was convicted, he filed a direct appeal to the Michigan Court of
Appeals and his conviction was affirmed. He then filed a petition for review in the Michigan
Supreme Court, but the Supreme Court rejected it as untimely. The Clerk of the Michigan Supreme
Court has filed an affidavit confirming the petition was untimely, and Petitioner has provided no
evidence to support his contention otherwise. [Dkt. # 14-11]. Petitioner’s unsupported allegations
are insufficient to overcome the Clerk’s affidavit. Accordingly, there was no defect in the Court’s
Petitioner also contends that the Court should excuse the procedural default of his claims
because of a “structural error” in the state court process. Specifically, Petitioner contends that his
sentence was enhanced based on past criminal misconduct even though the prosecutor did not file
a required written notice. See Mich. Comp. Laws § 769.13. The apparent state-law mistake that
Petitioner complains of is not the sort of “fundamental miscarriage of justice” that will excuse a
procedural default. See Schlup v. Delo, 513 U.S. 298, 321, 327–29 (1995). First, Petitioner has not
identified a constitutional error. Id. And second, even if there were a constitutional error, Petitioner
does not even allege that the error led to the conviction of someone who is “actually innocent.” Id.
Again, there was no error in the Court’s earlier analysis.
Accordingly, it is ORDERED that Petitioner’s motion for reconsideration [Dkt. # 31] is
DENIED. Petitioner is not entitled to reconsideration of his habeas petition, nor is he entitled to a
certificate of appealability or permission to proceed in forma pauperis on appeal.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: August 4, 2011
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney of record herein by electronic means and upon
Terrence Henderson, #209415, at Michigan Reformatory, 1342 West
Main Street, Ionia, MI 48846 first class U.S. mail on August 4, 2011.
s/Tracy A. Jacobs
TRACY A. JACOBS
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