Lewis v. Vasbinder
Filing
61
OPINION AND ORDER Denying 56 REQUEST for waiver of all fees for motions because of indigency by Martin Lewis; Denying 57 Motion to Amend/Correct; Denying 58 Motion to Reopen Case; Denying 59 Motion to Appoint Counsel; Granting 60 Motion to Amend/Correct. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARTIN A. LEWIS,
Petitioner,
v.
Case No. 2:04-cv-71140
Honorable Sean F. Cox
DOUG VASBINDER,
Respondent.
___________________________/
OPINION AND ORDER GRANTING PETITIONER’S MOTION TO AMEND HIS
RULE 60(b) MOTION (Docket No. 60) AND DENYING PETITIONER’S MOTIONS
FOR WAIVER OF FEES AND COSTS (Docket No. 56), FOR LEAVE TO AMEND HIS
HABEAS PETITION (Docket No. 57), TO RE-OPEN THIS CASE (Docket No. 58),
AND FOR APPOINTMENT OF COUNSEL (Docket No. 59)
I. Background
This is a habeas corpus action under 28 U.S.C. § 2254. Following a bench trial in the year
2000, Petitioner was found guilty of first-degree, premeditated murder, Mich. Comp. Laws §
750.316(1)(a), and sentenced to life imprisonment without the possibility of parole.
The
conviction arose from
the 1980 beating death of Cornell Smith. The incident occurred at about 10:30 p.m.
on July 31, 1980 on the grounds of the Woodward School in Kalamazoo County.
Witnesses saw two cars pull up to the school. The assailant got out of one car and
approached the other car. An argument ensued, during which the assailant returned
to his car and retrieved a baseball bat. The driver of the second car subsequently
drove off, leaving the victim, who had been his passenger. The assailant chased
the victim, and, according to witnesses, inflicted a fatal blow to the victim’s head
with a full swing of the bat.
People v. Lewis, No. 230887, 2002 WL 31957700, at *1 (Mich. Ct. App. Dec. 27, 2002). The
Michigan Court of Appeals affirmed Petitioner’s conviction, see id., and on November 24, 2003,
the Michigan Supreme Court denied leave to appeal. See People v. Lewis, 671 N.W.2d 880 (Mich.
2003) (table).
Petitioner commenced this action in 2004. (Docket No. 1). The State moved for summary
judgment and dismissal of the petition on the basis that Petitioner had not exhausted state remedies
for his claims that his trial attorney (1) failed to properly pursue the services of an expert witness
on eyewitness identification and (2) waived his right to impeach two witnesses with their prior
convictions. (Docket No. 11). Petitioner disagreed with the State’s argument regarding exhaustion
of state remedies, but he stated in a response to the State’s motion that, if the Court agreed with
the State’s argument, he was willing to delete the unexhausted claims and proceed with his
exhausted claims. (Docket No. 30).
Former United States District Judge Lawrence P. Zatkoff was assigned to the case. He
agreed with the State that Petitioner did not exhaust state remedies for his claims that trial counsel
failed to take adequate steps to impeach prosecution witnesses and to obtain an expert witness on
identification. (Docket No. 33). However, because Petitioner had agreed to delete those claims
so that the court could proceed with his other claims, Judge Zatkoff adjudicated Petitioner’s
exhausted claims and denied the petition on the merits. (Docket No. 41). The United States Court
of Appeals for the Sixth Circuit subsequently denied a certificate of appealability. See Lewis v.
Vasbinder, No. 07-2265 (6th Cir. June 6, 2008).
In 2009, Petitioner filed a motion for relief from judgment, claiming that the state
prosecutor committed a fraud on the state and federal courts by misleading the courts into believing
that probable cause existed for Petitioner’s arrest. (Docket No. 52). Judge Zatkoff transferred the
motion to the Sixth Circuit Court of Appeals as a second or successive petition. (Docket No. 53).1
The Sixth Circuit denied Petitioner’s motion for authorization to proceed with a second or
1
Under 28 U.S.C. § 2244(b), a habeas petitioner who seeks to file a second or successive petition must
first seek and obtain authorization from the appropriate court of appeals before filing a second or
successive petition in the district court. 28 U.S.C. § 2244(b)(3)(A).
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successive petition. See In re Lewis, No. 09-1670 (6th Cir. Nov. 24, 2009). Petitioner filed two
additional motions for authorization to file a second or successive petition, but the Sixth Circuit
denied both motions. See In re Lewis, No. 11-1658 (6th Cir. Sept. 12, 2011); In re Lewis, No. 122446 (6th Cir. May16, 2013).
In 2014, Petitioner filed a motion for relief from judgment in the state trial court. He
claimed that his trial attorney was ineffective because the attorney (1) failed to impeach two
prosecution witnesses with their criminal histories and (2) failed to ask the trial court for additional
funds for an expert witness on eyewitness identification.
Petitioner also argued that appellate
counsel was ineffective for failing to raise the issues about trial counsel on appeal.
The trial court determined that it was precluded from adjudicating Petitioner’s claim about
trial counsel’s failure to impeach prosecution witnesses with their criminal histories because, in
the court’s opinion, the issue was decided against Petitioner on appeal. The trial court adjudicated
Petitioner’s other claim about trial counsel on the merits and concluded that Petitioner was not
prejudiced by counsel’s failure to procure an expert witness. The court stated that, even if the
expert witness had been able to testify and discredit the eyewitnesses’ testimony, there was plenty
of other evidence to implicate Petitioner in the crime and, therefore, the outcome of the trial would
not have been different. The trial court also found no merit in Petitioner’s claim about appellate
counsel. See People v. Lewis, No. 2000-0171-FC (Kalamazoo Cty. Cir. Ct. Mar. 30, 2015).
The Michigan Court of Appeals denied leave to appeal the trial court’s decision for failure
to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Lewis, No.
328472 (Mich. Ct. App. Sept. 29, 2015). On July 26, 2016, the Michigan Supreme Court likewise
denied leave to appeal under Rule 6.508(D). See People v. Lewis, No. 152662 (Mich. Sup. Ct.
July 26, 2016).
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In 2017, Petitioner filed another habeas corpus petition. He claimed to have new reliable
evidence from an expert witness who could discredit the eyewitnesses’ testimony. He asserted
that his trial attorney was ineffective for (1) not informing the trial court that the expert witness
had requested additional funds to cover his costs and (2) not conducting an adequate cross
examination of prosecution witnesses regarding their prior convictions. Petitioner also claimed
that appellate counsel was ineffective for failing to raise obvious and significant issues on appeal.
The 2017 case was assigned to United States District Judge Paul D. Borman, who
transferred the petition to the Sixth Circuit as a second or successive petition. See Lewis v. Haas,
No. 2:17-cv-10734 (E.D. Mich. Mar. 9, 2017). The Sixth Circuit denied Petitioner’s motion for
leave to file a second or successive petition. See In re Lewis, No. 17-1253 (6th Cir. July 19, 2017).
Now before the Court are Petitioner’s motions to re-open this case and to amend his
petition. Petitioner also has asked the Court to appoint counsel for him, to grant permission to
amend his Rule 60(b) motion, and to waive payment of the fees and costs for his motions. The
motions to re-open this case and to amend the petition seek to have the Court adjudicate
Petitioner’s claims that trial counsel was ineffective for failing to (1) alert the trial court that the
defense expert needed additional funds to cover his costs and (2) impeach two prosecution
witnesses with their criminal histories. Petitioner alleges that Judge Zatkoff erred when he
determined that Petitioner had not exhausted state remedies for these claims.2
2
Although a Rule 60(b) motion that attacks a district court’s previous resolution of a claim on the merits
must be treated as a successive habeas petition, Petitioner is challenging Judge Zatkoff’s failure to
adjudicate the merits of his two claims about trial counsel. For this reason, the Court is not treating
Petitioner’s Rule 60(b) as a second or successive habeas petition. See Gonzalez v. Crosby, 545 U.S. 524,
532 (2005) (concluding that a Rule 60(b)(6) which attacks, not the substance of the federal court’s
resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings, is
not a second or successive petition; id. at 538 (holding that a Rule 60(b)(6) motion which challenges only
the District Court’s failure to reach the merits of a claim does not warrant treating the motion as a
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II. Discussion
A. The Motion for Waiver of Fees and Costs (Docket No. 56)
Petitioner has asked the Court to waive all fees and costs for his pending motions because
he is indigent. The Court, however, does not assess a filing fee for motions. Accordingly, the
motion to waive fees and costs is denied as unnecessary.
B. The Motion to Amend the Rule 60(b) Motion (Docket No. 60)
In his motion to amend the Rule 60(b) motion, Petitioner states that he wants to amend his
Rule 60(b) motion to correct a clerical error in the motion and to replace a page in the motion.
According to Petitioner, the correction is necessary to show that he is filing his Rule 60(b) motion
under Federal Rule of Civil Procedure 60(b)(4) and (6).
The motion is granted. Although the Court cannot replace a page in a document that has
been filed and docketed, the Court agrees to treat the Rule 60(b) motion as filed under Rule
60(b)(4) and (6).
C. The Motion for Appointment of Counsel (Docket No. 59)
Petitioner has asked the Court to appoint counsel for him to assist him with his motions.
He states that he is indigent, that he is untrained in the law, and that he has a limited education.
There is no right to appointment of counsel in a collateral attack on a conviction, see
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and the interests of justice do not require
appointment of counsel in this case. 18 U.S.C. § 3006A(a)(2)(B). Accordingly, the Court denies
Petitioner’s motion for appointment of counsel.
successive habeas petition and can be ruled on by the District Court without precertification by the Court
of Appeals under § 2244(b)(3)).
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D. The Motion to Re-Open this Case (Docket No. 58)
and to Amend the Petition (Docket No. 57)
As noted above, Petitioner seeks to re-open this case under Federal Rule of Civil Procedure
60(b)(4) and (b)(6). He also wants to amend his petition to include his claims that trial counsel
was ineffective for failing to (1) impeach two prosecution witnesses with their criminal histories
and (2) ask the trial court for additional funds for an expert witness on eyewitness identification.
Rule 60(b) authorizes federal courts to relieve a party from a final judgment “when the
judgment is void,” Fed. R. Civ. P. 60(b)(4), and for “any other reason that justifies relief,” Fed. R.
Civ. P. 60(b)(6). Such motions, however, “must be made within a reasonable time.” Fed. R. Civ.
P. 60(c)(1).
Petitioner is seeking to re-open a case that was closed over ten years ago. Although he
contends that, since then, he has exhausted state remedies for the two claims that Judge Zatkoff
declined to review, Petitioner could have offered to do that in 2004 when the State argued that the
claims were not exhausted. Instead, he agreed to dismiss the claims, and in subsequent years, he
failed to reassert the claims. The Court, therefore, concludes that Petitioner’s 60(b) motion, which
he filed in 2018, was not filed within a reasonable time.
Furthermore, even though leave to amend a pleading should be freely given “when justice
so requires,” Fed. R. Civ. P. 15(a)(2), a court is not required “to give leave if doing so would be
futile, such as when the amended complaint cannot survive a motion to dismiss.” United States ex
rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905, 917 (6th Cir. 2017), cert. denied, 138 S. Ct.
2582 (2018). Petitioner’s claims about trial counsel probably would not survive a motion to
dismiss due to the expiration of the one-year statute of limitations for habeas petitions. See 28
U.S.C. § 2244(d).
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Petitioner attempts to bypass the statute of limitations by arguing that his claims relate back
to the date of his original petition. Under Federal Rule of Civil Procedure 15(c)(1), “[a]n
amendment to a pleading relates back to the date of the original pleading when . . . the amendment
asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or
attempted to be set out—in the original pleading . . . .” Thus, in habeas cases, amendments made
after the statute of limitations has run relate back to the date of the original pleading if the original
and amended pleadings arose from the same conduct, transaction, or occurrence. Mayle v. Felix,
545 U.S. 644, 655-56 (2005) (citing Rule 15(c)(2)). “So long as the original and amended petitions
state claims that are tied to a common core of operative facts, relation back will be in order.” Id.
at 664.
Even if the Court were to assume that Petitioner’s claims about trial counsel arise from
conduct, a transaction, or an occurrence set out in his initial petition, this case is closed, unlike
Mayle where the petitioner moved to amend a pending habeas petition. The “relation back”
doctrine does not apply because there is no pending petition to which the amendment can relate
back. See Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (citing Jones v. Morton, 195 F.3d
153, 160–61 (3d Cir. 1999), and Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999));
Raspberry v. Garcia, 448 F.3d 1150, 1155 (9th Cir. 2006). As explained in White v. Dingle, 616
F.3d 844 (8th Cir. 2010),
[t]here are persuasive theoretical and practical justifications for this outcome. . . .
From a practical standpoint, permitting relation-back risks “eviscerat[ing] the
AEDPA limitations period and thwart[ing] one of AEDPA’s principal purposes,”
which was to expedite federal habeas review. Graham v. Johnson, 168 F.3d 762,
780 (5th Cir. 1999). Courts rightly fear that permitting relation-back would allow
petitioners to use an original petition as a placeholder, thereby indefinitely tolling
the statute of limitations. The end result of such an approach would be an exception
that threatens to swallow the entire rule.
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Id. at 847. The Court concludes that it is not required to permit Petitioner to re-open and amend
his initial petition.
III. Order
For the reasons given above, the Court
• denies as unnecessary the motion for waiver of all fees and costs for the pending motions
(docket no. 56);
• grants the motion to amend the Rule 60(b) motion (docket no. 60);
• denies the motion for appointment of counsel (docket no. 59);
• denies the motion to re-open this case (docket no. 58); and
• denies the motion to amend the petition (docket no. 57).
Finally, the Court declines to issue a certificate of appealability on Petitioner’s Rule 60(b)
motion, because Petitioner has not demonstrated that jurists of reason would disagree with the
Court’s resolution of his constitutional claims or that the issues presented deserve encouragement
to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
IT IS SO ORDERED.
Dated: January 14, 2019
s/ Sean F. Cox
Sean F. Cox
United States District Judge
I hereby certify that on January 14, 2019, the document above was served on counsel of record
via electronic means and upon Martin A. Lewis via First Class Mail at the address below:
Martin Lewis
138477
SAGINAW CORRECTIONAL FACILITY
9625 PIERCE ROAD
FREELAND, MI 48623
s/J. McCoy
Case Manager
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