Zahraie v. McCullik

Filing 7

ORDER Denying 6 Motion for Reconsideration. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

JAMSHID BAKSHI ZAHRAIE,
Petitioner,

Case No. 1:17-cv-10875
Hon. Thomas L. Ludington

v.
MARK MCCULLIK,
Respondent.
___________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION
Petitioner, Jamshid Bakshi Zahriai, a state prisoner, filed this case under 28 U.S.C. §
2254, challenging his Michigan convictions. On March 30, 2017, the Court summarily dismissed
the petition on exhaustion grounds and denied his motion to stay the case, finding that all
fourteen of his claims were admittedly unexhausted and that he still had approximately sixmonths remaining on the one-year habeas statute of limitations to present them to the state court
and therefore a stay was unnecessary. ECF No. 4.
On April 10, 2017, Petitioner filed a motion for reconsideration. ECF No. 6. Petitioner
asserts that the Court erred in failing to stay his case. Local Rule 7.1(h) allows a party to file a
motion for reconsideration. However, a motion for reconsideration which presents the same
issues already ruled upon by the court, either expressly or by reasonable implication, will not be
granted. Ford Motor Co. v. Greatdomains.com, Inc., 177 F. Supp. 2d 628, 632 (E.D. Mich.
2001). The movant must not only demonstrate a palpable defect by which the court and the
parties have been misled but also show that a different disposition of the case must result from a

correction thereof. A palpable defect is a defect that is obvious, clear, unmistakable, manifest, or
plain. Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich. 1997).
Petitioner first asserts that his direct appeal ended on June 6, 2016, 90 days after his nonsentencing claims were rejected by the Michigan Supreme Court. The Court, on the other hand,
found that it ended on October 3, 2016, the date on which the United States Supreme Court
denied his petition for a writ of certiorari. Zahraie v. Michigan, 137 S.Ct. 115 (2016). Petitioner
asserts the earlier starting date of the statute of limitations under 28 U.S.C. § 2244(d)(1)(A),
means that he has less time to exhaust his claims than the Court determined, and this supports his
motion to stay the case rather than dismiss it without prejudice. Petitioner is incorrect. The
statute of limitations began to run the day after the United States Supreme Court denied his
certiorari petition. See Clay v. U.S., 537 U.S. 522, 539 n. 4 (2003) (noting uniformity of the
circuits on this issue). It does not matter that he did not present all of his claims in his petition for
certiorari; that omission did not affect the “finality of judgment” which is the operative date for
the commencement of the limitations period under § 2244(d)(1)(A).
Petitioner also asserts that the Michigan Supreme Court remanded his case to the state
trial court for consideration whether he should be resentenced under People v. Lockridge, 498
Mich. 358 (2015). The trial court apparently decided that a resentencing was not required and
issued an order to that effect on November 29, 2016. See ECF No. 6 at 5. Petitioner states that he
was given a new direct appeal from that decision, but that his two appointed appellate attorneys
have found no meritorious issues to raise on appeal. Id. He claims that a stay is required so that
the limitations period does not run as he attempts to press his Lockridge claim in this new direct
appeal.

The remand order from the Michigan Supreme Court does not present grounds for
staying the petition. If it is true that Petitioner was granted a new direct appeal, then that fact
would re-start the limitations period for all of Petitoiner’s claims when that proceeding
concluded, including claims concerning his conviction and not his resentencing. Burton v.
Stewart, 549 U.S. 147, 156-57 (2007) (where state appellate court remands for resentencing, the
limitations period does not begin until both the conviction and resentencing claims are final on
direct review); Rashad v. Lafler, 675 F.3d 564, 567-68 (6th Cir. 2012) (judgment became final
upon the conclusion of direct review of the new sentence petitioner received at resentencing).
In any case, Petitioner’s concern that the limitations period is running on his exhausted
claims while he seeks further relief in the state courts on other claims is misplaced. As the Court
explained in its opinion dismissing the petition, the statute of limitations is tolled so long as
petitioner has a properly filed petition for state collateral review pending in the state courts. 28
U.S.C. § 2244(d)(2). The tolling under that section stops the clock with respect to all of
Petitioner’s claims, even those that were already exhausted. Martin v. Jones, 969 F. Supp. 1058,
1062 (M.D. Tenn. 1997). And as explained, Petitioner had approximately six months remaining
on the limitations period when he filed his petition, leaving him with ample time to file for state
collateral review and then file a federal habeas petition after he completed such review.
In sum, Petitioner has failed to demonstrate a palpable defect by which the Court and the
parties have been misled or that a different disposition of the case must result from a correction
thereof. Witzke, 972 F. Supp. at 427. The motion for reconsideration will therefore be denied.

Accordingly, it is ORDERED that Petitioner’s motion for reconsideration, ECF No. 6, is
DENIED.

Dated: August 29, 2017

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on August 29, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager