Lewis v. Vasbinder

Filing 63

ORDER Denying 62 Petition For Rehearing filed by Martin Lewis. Signed by District Judge Sean F. Cox. (MacKay, K)

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.
___________________________/
ORDER DENYING THE “PETITION FOR PANEL REHEARING”
(Docket No. 62)
I. Background
This is a habeas corpus action under 28 U.S.C. § 2254. Following a bench trial in 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, 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).

In 2004, Petitioner filed his habeas corpus petition, which was assigned to former United
States District Judge Lawrence P. Zatkoff. (Docket No. 3). 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 obtain the services of an expert witness on
eyewitness identification and (2) waived his right to impeach two witnesses with their prior
convictions by failing to comply with the trial court’s motion schedule. (Docket No. 11).
Petitioner disagreed with the State’s argument, but he stated in a response to the State’s motion
that, if Judge Zatkoff agreed with the State, he was willing to delete the claims which the State had
argued were unexhausted and proceed with his other claims. (Docket No. 30).
Judge Zatkoff subsequently agreed with the State that Petitioner did not exhaust state
remedies for his claims that trial counsel failed to take adequate steps to obtain an expert witness
and to impeach prosecution witnesses. However, because Petitioner had agreed to delete those
claims to expedite review of his case on his other claims, Judge Zatkoff denied the State’s motion
for summary judgment. (Docket No. 33). Judge Zatkoff then adjudicated Petitioner’s exhausted
claims and denied the petition on the merits. (Docket No. 41). Petitioner appealed Judge Zatkoff’s
decision, but the United States Court of Appeals for the Sixth Circuit declined to grant a certificate
of appealability. See Lewis v. Vasbinder, No. 07-2265 (6th Cir. June 6, 2008). In subsequent
years, Petitioner attempted to file second or successive habeas petitions. The Sixth Circuit Court
of Appeals, however, denied the requests for authorization to proceed with a second or successive
habeas petition.
In 2014, Petitioner raised his two unexhausted claims about trial counsel in a motion for
relief from judgment, which he filed in the state trial court. The trial court determined that it was
precluded from adjudicating Petitioner’s claim about trial counsel’s failure to impeach prosecution
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witnesses with their criminal histories because 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. See People v.
Lewis, No. 2000-0171-FC (Kalamazoo Cty. Cir. Ct. Mar. 30, 2015). Both the Michigan Court of
Appeals and the Michigan Supreme Court denied Petitioner’s applications for leave to appeal the
trial court’s decision. See People v. Lewis, No. 328472 (Mich. Ct. App. Sept. 29, 2015); People
v. Lewis, 882 N.W.2d 144 (Mich. 2016).
In 2017, Petitioner filed another habeas corpus petition, claiming that he had recently
exhausted state remedies for his two claims about trial counsel. 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 leave to file a second or successive petition. See In re Lewis, No. 171253 (6th Cir. July 19, 2017).
Petitioner subsequently filed a motion to amend his habeas petition in this case. (Docket
No. 57). He also moved to re-open this case under Federal Rule of Civil Procedure 60(b) (docket
no. 58) and to amend his Rule 60(b) (docket no. 60) to clarify that he was bringing his Rule 60(b)
motion under subsections (4) and (6) of the rule. The basis for his motions to amend the habeas
petition and re-open this case was his claim 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 argued that Judge Zatkoff erred
when he determined that Petitioner had not exhausted state remedies for these claims and then
declined to rule on the merits of Petitioner’s claims about trial counsel.
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The case was randomly reassigned to this Court following Judge Zatkoff’s retirement, and
on January 14, 2019, the Court granted the motion to amend the Rule 60(b) motion, but denied
Petitioner’s motions to re-open this case and to amend his habeas petition. The Court stated that
Petitioner did not file his Rule 60(b) motion within a reasonable time and that leave to amend was
not warranted because Petitioner’s claims appeared to be barred by the one-year statute of
limitations and the motions did not relate back in time to the date of the initial petition.
Now before the Court is Petitioner’s “Petition for Panel Rehearing.” Petitioner argues that:
there is no time limit for filing a motion under Rule 60(b); the trial court’s determination that he
raised his claims on appeal was the law of the case; and this Court erred in relying on White v.
Dingle, 616 F.3d 844 (8th Cir. 2010), and Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000), for
the principle that the “relation back” rule of Federal Rule of Civil Procedure 15(c) does not apply
when there is no pending petition to which an amendment can relate back.
II. Discussion
This District’s Local Rules provide that
[g]enerally, and without restricting the Court’s discretion, the Court will not grant
motions for rehearing or reconsideration that merely present the same issues ruled
upon by the Court, either expressly or by reasonable implication. The movant must
not only demonstrate a palpable defect by which the Court and the parties and other
persons entitled to be heard on the motion have been misled but also show that
correcting the defect will result in a different disposition of the case.
LR 7.1 (h) (3). “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)).

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A. The Timeliness of the Rule 60(b) Motion
Petitioner alleges first that reconsideration should be granted because the Court erred in
concluding that his Rule 60(b) motion was not filed within a reasonable time. Petitioner notes that
he brought his motion to re-open this case under Rule 60(b)(4), and he argues that a motion under
that subsection does not have to satisfy any threshold requirements such as timeliness.

The

Federal Rules of Civil Procedure, however, clearly state that “[a] motion under Rule 60(b) must
be made within a reasonable time . . . ,” Fed. R. Civ. P. 60(c)(1), and Petitioner filed his Rule 60(b)
motion more than a decade after Judge Zatkoff issued the judgment in this case. This Court did
not make a palpable error when it concluded that Petitioner’s Rule 60(b) motion was not filed
within a reasonable time.
B. Law of the Case
Petitioner alleges next that the Court should grant reconsideration under the doctrine of the
law of the case. Petitioner appears to be arguing that the law of the case is that he did exhaust state
remedies for his claims about trial counsel, because the trial court determined on post-conviction
review that Petitioner raised at least one of his claims on appeal.
The United States Court of Appeals for the Sixth Circuit recently explained that
[t]he defining feature of the law-of-the-case doctrine is that it applies only within
the same case. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,
815–16, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (quoting Arizona v. California,
460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)); Burley v. Gagacki, 834
F.3d 606, 618 (6th Cir. 2016); 18B C. Wright & A. Miller, Federal Practice and
Procedure § 4478 (2d ed. Nov. 2018 update). A post-conviction habeas action is
not a subsequent stage of the underlying criminal proceedings; it is a separate civil
case. See Pennsylvania v. Finley, 481 U.S. 551, 556–57, 107 S.Ct. 1990, 95
L.Ed.2d 539 (1987). . . .
Edmonds v. Smith, 922 F.3d 737, 739 (6th Cir. 2019). Thus,
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“findings made at one stage in the litigation should not be reconsidered at
subsequent stages of that same litigation.” Burley, 834 F.3d at 618. The doctrine
does not mark a limit on a court’s authority—courts are free to revisit their own
rulings before final judgment—but is instead a recognition that for cases to reach
resolution, issues cannot be argued and reargued without end. See Messenger v.
Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912). In other words,
the doctrine aims to “maintain consistency and avoid reconsideration of matters
once decided during the course of a single continuing lawsuit,” not to govern the
effects that final decisions have on other courts or cases. See 18B Wright & Miller
§ 4478.
at

Id.

739-40.

The law of this case is Judge Zatkoff’s determination that Petitioner did not exhaust state
remedies for the claims that he is currently trying to litigate. This Court is not required to
reconsider an issue that Judge Zatkoff resolved almost fourteen years ago on September 30, 2005,
particularly since Petitioner ultimately chose to delete his ineffective-assistance-of-counsel claims
if Judge Zatkoff determined that the claims were not exhausted in state court.1
C. Relation Back
In his final two arguments, Petitioner alleges that the Court erred when it concluded on the
basis of White v. Dingle, 616 F.3d 844 (8th Cir. 2010), and Warren v. Garvin, 219 F.3d 111 (2d
Cir. 2000), that Petitioner’s claims did not relate back in time to his previously dismissed habeas
petition. The Court is not persuaded that it made a palpable error when it reached that conclusion,
but for the following reasons, the Court also finds that Petitioner’s ineffective-assistance-ofcounsel claims do not warrant reconsideration or relief from the judgment in this case.

  See Petitioner’s Response to Respondent’s Mot. for Summary J., docket no. 30, p. 3. 

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1. Trial Counsel and the Expert Witness
Petitioner alleges that trial counsel was ineffective for failing to inform the trial court that
his defense expert required more money than the amount authorized by the trial court. The trial
court considered this issue during post-conviction proceedings and pointed out that,
even if the expert witness had been able to testify and discredit the eyewitness
testimony, . . . there was still plenty of other evidence to implicate the Defendant,
including his confessions to family and friends, his connection to the suspect
vehicle, the fact that [he] was seen with a bat both before and immediately after the
murder, and the fact that [he] had injuries on his hands that were consistent with
having been in a physical altercation.
People v. Lewis, Op. and Order Denying Deft’s Mot. for Relief from J., p. 6, No. 2000-0171-FC
(Kalamazoo Cty Cir. Ct. Mar. 30, 2015) (citations to the record omitted).
This Court agrees with the trial court that, in light of this other evidence, Petitioner was not
prejudiced by his trial attorney’s failure to procure an expert witness on identification, because the
outcome of the trial would not have been different with that witness. Therefore, Petitioner’s claim
lacks merit, and he is not entitled to reconsideration or relief from the judgment in this case.
2. Trial Counsel and the Failure to Impeach Witnesses
Petitioner’s other claim about trial counsel is that counsel failed to take adequate steps to
impeach prosecution witnesses with their criminal records. According to Petitioner, Gail Johnson
had a prior conviction for first-degree retail fraud, and Donald Garland had prior convictions for
conspiracy to commit false pretenses and attempted uttering and publishing. See Mem. of Law in
Support of Pet. for Writ of Habeas Corpus, docket no. 3, pp. 25-26. Trial counsel did not attempt
to impeach Garland with his criminal history, and when he attempted to impeach Johnson with her
prior conviction, the trial court did not allow the cross-examination because defense counsel had

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failed to comply with a pretrial order requiring motions for impeachment evidence to be filed no
later than the first day of trial.
Even if defense counsel had impeached Johnson and Garland with their prior convictions,
there is not a reasonable probability that the outcome of the trial would have been different because
there was substantial evidence implicating Petitioner in the murder, apart from the testimony of
Johnson and Garland. See Section II.C.1 above. As Judge Zatkoff stated in his dispositive opinion,
“[t]he omitted [impeachment] evidence did not ‘create[] a reasonable doubt that did not otherwise
exist,’ given Petitioner’s admissions to close friends and relatives that he killed a man.” Op. and
Order Denying Habeas Corpus Pet, docket no. 41, pp. 18-19 (first alteration added, second
alteration in original). Thus, Petitioner’s claim lacks merit, and he is not entitled to reconsideration
or relief from judgment.
III. Conclusion
Petitioner has not persuaded the Court that it made a palpable error when it denied his
motion to amend his habeas petition and his motion to re-open this case. Accordingly, the “Petition
for Panel Rehearing” (document no. 62) is denied.
IT IS SO ORDERED.
Dated: August 8, 2019

s/Sean F. Cox
Sean F. Cox
U. S. District Judge

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