Lewis v. Vasbinder

Filing 66

ORDER Denying 64 Request filed by Martin Lewis and Granting 65 MOTION TO EXTEND Time filed by Martin Lewis. 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.
_______________________________/
ORDER GRANTING PETITIONER’S MOTION FOR AN EXTENSION
OF TIME (ECF NO. 65) AND DENYING PETITIONER’S REQUEST FOR
AN EN BANC REHEARING BEFORE A THREE-JUDGE PANEL (ECF NO. 64)
I. Background
This is habeas corpus case under 28 U.S.C. § 2254. The habeas petition challenged
Petitioner’s state-court conviction for first-degree murder, Mich. Comp. Laws § 750.316. 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 commenced this case. Former United States District Judge Lawrence
P. Zatkoff denied the habeas petition on the merits (ECF No. 41), and the United States Court of
Appeals for the Sixth Circuit declined to grant a certificate of appealability (ECF No. 51). In
subsequent years, Petitioner unsuccessfully moved for permission to file a second or successive
habeas petition.
In 2018, Petitioner filed a motion to amend his habeas petition and a motion to re-open this
case pursuant to Federal Rule of Civil Procedure 60(b). (ECF Nos. 57 and 58). He argued in his
motion to amend that trial counsel was ineffective for failing to (1) alert the trial court that the
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defense expert needed additional funds to cover his costs and (2) impeach two prosecution
witnesses with their criminal histories.
The case was reassigned to this Court, and on January 14, 2019, the Court denied
Petitioner’s motions to amend his habeas petition and to re-open this case. 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. (ECF No. 61.)
Petitioner filed a “Petition for Panel Rehearing” (ECF No. 62), which the Court denied on
August 8, 2019, because it was not persuaded that it made a palpable error when it denied
Petitioner’s motion to amend his habeas petition and motion to re-open this case (ECF No. 63).
Now before the Court are Petitioner’s motion to extend the time to file a request for an en banc
rehearing (ECF No. 65) and Petitioner’s request for an en banc rehearing before a three-judge
panel (ECF No. 64). The request for an en banc rehearing (ECF No. 64) challenges the Court’s
denial of the Petition for Panel Rehearing (ECF No. 62).
II. Discussion
A. The Motion to Extend
Motions for rehearing or reconsideration ordinarily must be filed within 14 days after entry
of the judgment or order in question. LR 7.1(h)(1). Petitioner filed his request for an en banc
rehearing more than 14 days after the Court denied his Petition for Panel Rehearing. He alleges,
however, that (i) he is untrained in the law, (ii) there are limits to the amount of time that he can
spend in the prison law library, (iii) he must wait for his authorized day to pick up mailing
envelopes from the prison store, and (iv) he needs additional time to complete his request for an
en banc hearing. Given Petitioner’s pro se status and the limitations he faces in preparing legal
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documents, the Court grants his motion for an extension of time (ECF No. 65). Thus, the request
for an en banc rehearing before a three-judge panel (ECF No. 64) is deemed timely.
B. The Request for an En Banc Rehearing
Petitioner brings his request for an en banc rehearing before a three-judge panel under
Federal Rule of Appellate Procedure 35(a) and Local Rule 9.1(c). Appellate Rule 35 is not
applicable to this Court, and Local Rule 9.1(c) merely refers to 28 U.S.C. § 2284. Section 2284
states in relevant part that
[a] district court of three judges shall be convened when otherwise required by Act
of Congress, or when an action is filed challenging the constitutionality of the
apportionment of congressional districts or the apportionment of any statewide
legislative body.
28 U.S.C. § 2284(a).
Petitioner has not cited an Act of Congress that requires the Court to convene a panel of
three judges to hear his claims, and he is not challenging the constitutionality of the apportionment
of congressional districts or the apportionment of any statewide legislative body. Accordingly,
Petitioner’s request for an en banc rehearing before a three-judge panel (ECF No. 64) is denied.
Dated: January 14, 2020

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

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