Ambrose v. Romanowski

Filing 93

ORDER granting in part and denying part 83 MOTION for Reconsideration re 80 Opinion & Order and denying as moot 88 Application to Proceed Without Prepaying Fees or Costs filed by Samuel Ambrose. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
SAMUEL AMBROSE,
Petitioner,
v

Case No. 08-12502
Honorable Thomas L. Ludington

KENNETH ROMANOWSKI,
Respondent.
__________________________________________/
ORDER GRANTING IN PART AND DENYING IN PART PETITIONER’S MOTION
FOR RECONSIDERATION
Petitioner Samuel Ambrose, a state prisoner at Bellamy Creek Correctional Facility in
Ionia, Michigan, has appealed the Court’s opinion and order denying his habeas corpus petition
and granting in part a certificate of appealability. Petitioner was convicted of second-degree
murder in the former Recorder’s Court for the City of Detroit, Michigan, and sentenced to life
imprisonment. He asserted eleven claims for relief in his habeas corpus petition. On March 31,
2014, the Court denied the habeas petition, but granted a certificate of appealability as to
Petitioner’s eleventh claim, which alleges that his trial attorney failed to inform him of an offer
for a plea agreement.

Currently pending before the Court are Petitioner’s motion for

reconsideration of that decision and his motion to proceed in forma pauperis on appeal. For the
reasons that follow, the motion for reconsideration is granted in part, but the motion to proceed
in forma pauperis on appeal is denied as moot.

I.
Motions for reconsideration are
governed by the local rules in the Eastern District of Michigan, which provide that
the movant must show both that there is a palpable defect in the opinion and that
correcting the defect will result in a different disposition of the case. E.D. Mich.
Local Rule 7.1(g).1 The local rule also specifically states that merely presenting
the same issues that the court previously ruled on is not an acceptable ground for
reconsideration.
Indah v. U.S. S.E.C., 661 F.3d 914, 924 (6th Cir. 2011) (footnote in original as note 5). “A
‘palpable defect’ is a defect which is obvious, clear, unmistakable, manifest, or plain.” Hawkins
v. Genesys Health Systems, 704 F. Supp. 2d 688, 709 (E.D. Mich. 2010) (quoting Ososki v. St.
Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714, 718 (E.D. Mich. 2001)).
II.
In his motion for reconsideration, Petitioner urges the Court to reconsider habeas claims
I, II, VI, and IX or to grant a certificate of appealability on those claims. Habeas claim I alleges
that it was reversible error for the state trial court to deny Petitioner’s request for a “hung jury”
charge and to instruct the jurors that they could consider involuntary manslaughter only upon
finding that Petitioner was not guilty of the principal charge of second-degree murder. Habeas
claim II alleges that Petitioner is entitled to a new trial because he did not voluntarily,
knowingly, and intelligently waive his constitutional right to a sworn jury. Claim VI alleges that
the state magistrate judge who presided over the reverse writ proceedings in state court was not
neutral or detached. Claim IX alleges that Petitioner was denied an opportunity to respond to a
juror’s request because he and his attorney were absent when the juror asked the trial court for a
written copy of the jury instructions on second-degree murder and manslaughter.

1

This provision is currently contained in Local Rule 7.1(h).

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Petitioner’s arguments in his motion for reconsideration merely present the same issues
that the Court ruled on in its opinion and order denying the habeas corpus petition. Furthermore,
the Court does not believe the decision to deny the petition for a writ of habeas corpus was
palpably defective. The Court therefore declines to reconsider habeas claims I, II, VI, and IX.
III.
A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Petitioner claims that, at a minimum the Court should grant a certificate of appealability
on his first claim. This Court found no merit in Petitioner’s first claim, but the dissenting judge
on direct appeal concluded that the trial judge committed reversible error by conditioning the
jury’s consideration of the lesser-included offense of manslaughter on a finding that Petitioner
was not guilty of the principal charge of second-degree murder. Obviously, reasonable jurists
could disagree with the Court’s resolution of Petitioner’s first claim. The Court therefore will
grant a certificate of appealability on the portion of habeas claim I that alleges it was reversible
error for the state trial court to instruct the jurors that they could consider involuntary
manslaughter only if they first determined that Petitioner was not guilty of second-degree
murder.

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IV.
Accordingly, it is ORDERED that Petitioner’s motion for reconsideration (ECF No. 83)
is GRANTED IN PART AND DENIED IN PART. The motion is denied to the extent that the
Court to declines to reconsider Petitioner’s habeas claims. The motion is granted in that a
certificate of appealability may issue on habeas claim I. The Court declines to grant a certificate
of appealability on any additional claims. In summary, the Court grants a certificate of
appealability only on Petitioner’s habeas claim I and XI.
It is further ORDERED that Petitioner’s motion to proceed in forma pauperis on appeal
(ECF No. 88) is DENIED AS MOOT, because the Court previously granted leave to proceed in
forma pauperis on appeal. See ECF No. 80 at 31.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: May 9, 2014

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
Samuel Lee Ambrose, No. 159367, at Bellamy Creek Correctional
Facility, 1727 West Bluewater Highway, Ionia, MI 48846 by first class
U.S. mail on May 9, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS

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