Shaw v. Renico

Filing 84

ORDER denying 68 Motion for Reconsideration ; denying 69 Motion for Reconsideration ; denying 79 Motion for Evidentiary Hearing. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JEFFERY SHAW,
Petitioner,

Case Number: 2:02-70870

v.

HONORABLE ARTHUR J. TARNOW

PAUL RENICO,
Respondent.
/
ORDER DENYING PETITIONER’S MOTIONS FOR RECONSIDERATION
AND MOTION FOR EVIDENTIARY HEARING
Petitioner Jeffery Shaw filed a petition for a writ of habeas corpus under 28 U.S.C. §
2254, challenging his convictions for three counts of assault with intent to do great bodily harm
less than murder and three counts of felony firearm. The Court held an evidentiary hearing
regarding Petitioner’s ineffective assistance of trial and appellate counsel claims. The Court then
denied the petition. Now before the Court are Petitioner’s Motions for Reconsideration and
Motion for Evidentiary Hearing.1
Motions for reconsideration may be granted when the moving party shows (1) a
“palpable defect,” (2) by which the court and the parties were misled, and (3) the correction of
which will result in a different disposition of the case. E.D. Mich. L.R. 7.1(h)(3). A “palpable
defect” is a “defect which is obvious, clear, unmistakable, manifest or plain.” Olson v. The
Home Depot, 321 F. Supp. 2d 872, 874 (E.D. Mich. 2004). While Petitioner disagrees with the
Court’s decision denying his petition, he fails to show that the decision was based upon a

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The first Motion for Reconsideration was filed in the form of a letter to the Court, but
was docketed as a Motion for Reconsideration. Therefore, the Court refers to it as such.

palpable defect. In his motion, Petitioner also cites Fed. R. Civ. P. 59(e). The disposition of
motions under Rule 59(e) are “entrusted to the court’s sound discretion.” Keweenaw Bay Indian
Community v. United States, 940 F. Supp. 1139, 1140 (W.D. Mich. 1996) (citing Huff v.
Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982)). Rule 59(e) motions are generally
granted when one of the following circumstances arises:
(1) an intervening change in the controlling law; (2) evidence not previously
available has become available; or (3) necessity to correct a clear error of law or
prevent manifest injustice.
Nagle Industries, Inc. v . Ford Motor Co., 175 F.R.D. 251, 254 (E.D. Mich. 1997) (citing
Keweenaw Bay, 940 F. Supp. at 1141). “Such motions, however, are ‘not intended as a vehicle
to relitigate previously considered issues;’ ‘should not be utilized to submit evidence which
could have been previously submitted in the exercise of reasonable diligence’ and are not the
proper vehicle to attempt to obtain a reversal of a judgment ‘by offering the same arguments
previously presented.’” Id., (quoting Keweenaw Bay, 904 F. Supp. at 1141). None of the
arguments set forth by Petitioner in support of his motion satisfy the standards under which Rule
59(e) motions may be granted. Therefore, the Motions for Reconsideration will be denied.
Finally, Petitioner has filed a Motion for Evidentiary Hearing. He seeks a second
evidentiary hearing to present: linguistic evidence interpreting the 911 call made by Sue
Berghuis, “screen shots” of the 911 call, and a meteorologist’s interpretation of the National
Weather Service report of the weather on the day of the shootings. Petitioner seeks to develop
this evidence as part of his repeated attempts to establish that Berghuis testified falsely and that
the 911 tape at trial was manufactured by police. Petitioner was given a fair opportunity to
present evidence at the evidentiary hearing already conducted. Nothing contained or alleged in

the motion convinces the Court that this matter should be reopened. The Court denies the
motion.
Accordingly, IT IS ORDERED that Petitioner’s Motions for Reconsideration [dkt. # 68
& dkt. #69] and Motion for Evidentiary Hearing [dkt. # 79] are DENIED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: March 7, 2012
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on March 7, 2012, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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